IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 3RD NOVEMBER 2008 / 12TH KARTHIKA 1930 RSA.No. 1047 of 2008() ---------------------- AS.79/2005 of PRL.SUB COURT,IRINJALAKUDA OS.2149/2003 of PRL.M.C.,IRINJALAKUDA .................... APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 2: -------------------------------------------------------- 1. PURUSHOTHAMAN, AGED 58, S/O. PAYYAKKAL, KALYANIKUTTYAMMA, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. 2. GIRIJA, W/O. PURUSHOTHAMAN, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENT/RESPONDENTS/PLAINTIFFS:- -------------------------------------------------- 1. KALYANIKUTTYAMMA, D/O. PAYYAKKAL KUNJIKALIAMMA, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. 2. SREEDEVIAMMA, D/O. PAYYAKKAL KALYANIKUTTYAMMA, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. 3. PRABHAKARA MENON, S/O. KURUVEETTIL PAPPIAMMA, POOMANGALAM VILLAGE, MUKUNDAPURAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. =================== R.S.A.No. 1047 of 2008 ==================== Dated this the 3rd day of November, 2008. JUDGMENT Defendants 1 and 2 in O.S. No. 2149 of 2003 on the file of the Principal Munsiff's Court, Irinjalakuda are the appellants in this Second Appeal. They are husband and wife. The 1st defendant and the 2nd plaintiff are the son and daughter respectively of the 1st plaintiff and the 3rd plaintiff is the husband of the 2nd plaintiff. The 2nd defendant is the wife of the 1st defendant. The aforesaid suit was filed by the mother and her daughter (who is the sister of the 1st defendant) seeking recovery of possession of the plaint B schedule property admeasuring 6.5 cents with a residential building thereon which is claimed to be part of the plaint A schedule property admeasuring 33 cents of land comprised in Survey No. 833 of Poomangalam village. According to the plaintiff, the plaint A schedule property was alloted to the share of plaintiffs 1 and 2 as item No. 1 in Ext.A1 registered partition deed dated 12.03.1986 and item No.2 under R.S. A No. 1047 of 2008 : 2: Ext.A1 partition deed was allotted to the 1st defendant. The further case of the plaintiffs is that the 1st defendant sold the land allotted to him under Ext.A1 partition and became homeless. Thereupon, plaintiffs 1 and 2 constructed a house in a corner of the plaint A schedule property and identified as 6.5 cents (plaint B schedule property) and permitted the 1st defendant to reside there since 1990 and thereafter the said permission was revoked and the suit is filed for recovery of possession on the strength of the plaintiffs' title. 2. The appellants who were husband and wife raised the following contentions:- It was to discharge the family debts that the 1st defendant sold the property alloted to him under Ext.A1 partition deed. Thereupon, his mother and sister namely plaintiffs 1 and 2 orally gifted the site covered by plaint B schedule property to the 1st defendant on 25.12.1988 and the 1st defendant constructed the present house thereon spending Rs.3 lakhs, the funds for which was raised from the salary income of his wife (2nd defendant) who is employed as a teacher. R.S. A No. 1047 of 2008 : 3: 3. The present suit was jointly tried along with O.S. No. 1943 of 2002, which was a suit filed by the present 1st defendant against plaintiffs 2 and 3 seeking a perpetual injunction in respect of the present plaint B schedule property. O.S. No. 2149 of 2003 was treated as the leading case in which both sides adduced evidence. Exts. A1 to A19 are the documents marked on the side of the appellants and Exts. B1 to B14 are the documents marked on the side of the plaintiffs. The 1st defendant was examined as PW1 and he also examined two other witnesses as PWs 2 and 3. The 3rd plaintiff was examined as DW1. 4. The learned Munsiff after trial dismissed O.S. No. 1943 of 2002 holding inter alia that the plaintiff therein who is the 1st defendant in the present suit, had failed to establish his possession of the plaint B schedule property. O.S. No. 2149 of 2003 was decreed holding that the oral gift set up by the defendants therein is not true and accepting the case of plaintiffs 1 and 2 therein to hold that they have proved their title over the plaint B schedule property. It was also found that since the defendants have not put forward a plea of R.S. A No. 1047 of 2008 : 4: adverse possession and limitation, the title of the plaintiffs are not lost by any mode. Aggrieved by the decree passed in O.S. No. 1943 of 2002, the plaintiff therein who is the present 1st defendant filed A.S. No. 75 of 2005. Aggrieved by the decree passed in O.S No. 2149 of 2003, the present appellant filed A.S. No. 79 of 2005. Both the appeals were heard and disposed of by a common judgment as per which the lower appellate court confirmed the decrees passed by the trial court. Hence this Second Appeal arising out of O.S. No. 2149 of 2003. 5. The learned counsel appearing for the appellants/defendants made the following submissions before me attacking the decree passed by the courts below:- Even though what was pleaded in the written statement was an oral gift dated 25.12.1988, it was in effect a permission to occupy the site of the plaint B schedule property over which it was the 1st defendant who constructed the house in question. Even though he had became homeless after selling off the property obtained by him under Ext.A1 partition deed, his mother and sister had permitted him to occupy the site R.S. A No. 1047 of 2008 : 5: covered by plaint B schedule property and it was the 1st defendant who constructed the house thereon utilising the income derived from his wife who is employed as a teacher. The courts below have overlooked the fact that the 1st defendant had produced building tax receipts showing that he was in exclusive possession of the building right from 1990 onwards and Exts.A9 and A10 ration cards also showed that he was in occupation of the building. As against this, the plaintiffs had only produced two tax receipts of the year 2003, Ext. B4 possession certificate, Ext.B6 certificate issued by the Secretary, Poomangalam Grama Panchayat and Ext.A9 solitary building tax receipt of the year 2004. When the defendants have clearly shown that the site covered by the plaint B schedule property was permitted to be occupied by the 1st defendant and it was he who constructed the house thereon, a case of irrevocable licence under Section 60(b) of the Easements Act was clearly made out. The findings recorded by the courts below that it was plaintiffs 1 and 2 who constructed the house in question, is without advertence to the evidence adduced by the appellants. Even though the plea R.S. A No. 1047 of 2008 : 6: taken in written statement was one of oral gift, the parties knew that a plea of irrevocable licence was covered by implication in the contentions raised by the appellants so that the want of specific plea in respect of the contentions based on Section 60(b) of the Easements Act could not have been put against the appellants in view of the decision in Bhagwati v. Chandramaul (AIR 1966 SC 735). 6. I am afraid that I cannot agree with the above submissions. The specific contention raised in the written statement as also in the plaint in the connected suit for injunction by the 1st defendant, was that the site covered by the present plaint B schedule property was orally gifted to the 1st defendant by plaintiffs 2 and 3 (his mother and sister) on 25.12.1988. As rightly observed by the courts below, it was not open to the 1st defendant to put forward the case of oral gift of the immovable property having an extent of 6.5 cents worth more than 100 rupees without a registered instrument contrary to the provisions under Section 123 of the Transfer of Property Act and Section 17 of the Registration Act, 1908. After setting up a specific case of oral gift, he cannot now turn R.S. A No. 1047 of 2008 : 7: round and raise a contention of permission to occupy the site and putting up the house thereon so as to take shelter under Section 60(b) of the Easements Act. Both the courts below have concurrently held that it was plaintiffs 1 and 2 who constructed the building in plaint B schedule property. If so, even if the appellants' case that by oral gift what he meant was a permission to occupy the site, he cannot press into service Section 60(b) of the Easements Act. On the concurrent findings recorded by the courts below his plea under Section 60(b) of the Easements Act also cannot stand. Once it is found that his case of oral gift is not true, then the title remains with plaintiffs 1 and 2 whose title can be defeated only by a successful plea of adverse possession and limitation. There has been no plea taken that the title of the plaintiffs is lost by adverse possession and limitation. Such being the possession, I do not find any question of law to justify the admission of this Second Appeal. The questions formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly dismissed in limine. R.S. A No. 1047 of 2008 : 8: 7. The learned counsel appearing for the appellants submitted that they may be given a breathing time to vacate the plaint B schedule property. I am inclined to grant the appellants one month's time from today on condition that the appellants file an affidavit before the Executing Court within two weeks from today undertaking to unconditionally surrender vacant possession of the plaint B schedule property including the house thereon within one month from today and that they shall not induct strangers into the property or commit any act of waste thereon. Dated this the 3rd day of November, 2008. V. RAMKUMAR, JUDGE. rv R.S. A No. 1047 of 2008 : 9: