IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 25TH JUNE 2009 / 4TH ASHADHA 1931 AS.No. 534 of 1998(C) ---------------------------------- OS.430/1995 of SUB COURT, PALA .................... APPELLANT(S): DEFENDANTS 1 & 2 IN THE ORIGINAL SUIT. ----------------------- 1. T.R.VELAYUDHAN NAIR, S/O. T.P.NARAYANA PANICKER, RESIDING AT THOZHUTHARATTU HOUSE, AYMANAM, KOTTAYAM. 2. M.R.RADHAMANI AMMA, W/O. T.R.VELAYUDHAN NAIR, RESIDING AT THOZHUTHARATTU HOUSE AYMANAM , KOTTAYAM. BY ADVS.MR.C.KOCHUNNY NAIR MR .M.C.MADHAVAN RESPONDENT(S): PLAINTIFF AND DEFENDANT NO.4 ------------------------- 1. C.N.SUKUMARI AMMA, D/O. DEVAKI AMMA, RESIDING AT MADHURAPURI, T.C. NO.27/1348,. UPPIDAMUDU COMPOUND, SREEKANTESWARAM, TRIVANDRUM. 2. C.N.SARASWATHY, RESIDING AT PUSHPA NAGAR, IST STREET, NUNGAMBAKKOM, MADRAS 24. ADV. MR.P.R.VENKETESH FOR R1 MR.P.R.VENKITESH,R1 FOR R1 THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 5/06/2009, THE COURT ON 25/06/2009 DELIVERED THE FOLLOWING: K.SURENDRA MOHAN, J. ------------------------------------------- A.S.No.534 of 1998 ------------------------------------------- Dated this the 25th day of June, 2009 JUDGMENT The appellants, husband and wife, are defendants 1 and 2 in O.S.No.430 of 1995 of the Court of the Sub Judge, Pala. They challenge the judgment and decree dated 31.10.1997 in the said suit by which the first respondent/plaintiff has been allowed to recover mesne profits from the appellants. The fourth defendant in the suit is the second respondent herein. 2. The plaint schedule property, having an extent of 4 acres and 51.5 cents, originally belonged to the mother of the plaintiff. The third and fourth defendants are sisters of the plaintiff. The mother got title and possession over the property as per a decree dated 12.3.1949 in O.S.No.259 of 1122 M.E. of the Munsiff's Court, Kottayam. The mother and the third defendant are no more. The plaintiff and the fourth defendant are vested with the title to the property, being the legal heirs of the deceased mother. 3. The mother of the plaintiff and defendants 3 and 4 was a music teacher. She had no male issue. According to the A.S.No.534/1998 2 appellants/defendants, they were entrusted with the property by the mother of the plaintiff from 1962 onwards continuously, for cultivation. The first and second defendants are the owners of the paddy field lying adjacent to the plaint schedule property. The first defendant was effecting cultivation in the plaint schedule property, ever since. Subsequent to the death of the mother of the plaintiff and defendants 3 and 4, suo motu proceedings were taken by the Land Tribunal, Vaikom under the Kerala Land Reforms Act. The Tribunal held that the first and second defendants have fixity of tenure over the plaint schedule property. The plaintiff challenged the said decision before the Land Reforms Appellate Authority, Ernakulam, by filing appeal Nos.480 and 481 of 1979. Both the appeals were allowed and the order of the Land Tribunal was set aside. Though the second defendant filed revisions before this Court against the said order of the Appellate Authority, as C.R.P.Nos.738 of 1989 and 860 of 1982, the revisions were dismissed by this Court. Thus, it was clearly found that defendants 1 and 2 are not entitled to get fixity of tenure over the plaint schedule property. 4. In view of the fact that defendants 1 and 2 had no fixity of tenure, they have no right to continue in possession of the property. A.S.No.534/1998 3 Therefore, the plaintiff alleged that she was entitled to recover vacant possession of the property on the strength of title. Since her sisters were living away from the property, they were impleaded as defendants in the suit. But, it is averred that she is praying for recovery on behalf of respondents 3 and 4 also. The plaintiff further contended that the annual income from the property was Rs.1,500/- and therefore she prayed for recovery of mesne profits also at the said rate. 5. The third and fourth defendants did not file any written statement. The suit was contested only by defendants 1 and 2. They disputed the correctness of the description of the plaint schedule property as well as the right of the plaintiff to recover the plaint schedule property. According to them, they are in possession of about 61 cents of property comprised in Sy.No.436/1 of Vechoor Village, over which the plaintiff has no right or claim. The first defendant had obtained the property under Kuthakapattom from the Government. He relies on the order in L.C.7/80 of the Taluk Office, Vaikom, to support the above fact. It is alleged that the plaintiff had falsely included the said property in the description of the plaint schedule property. The right of the plaintiff is confined to the property A.S.No.534/1998 4 comprised in Sy.No.435/1 of Vechoor Village. 61 cents comprised in Sy.No.438/1 has been filled up by defendants 1 and 2 and the same is planted with coconut palms. 6. Defendants 1 and 2 further stated that they were in possession of the property comprised in Sy.No.435/1 for a period of more than 30 years. According to them, they are in hostile possession of the property and by their long and continuous possession, they have perfected their right to the said property by adverse possession and limitation. It is further alleged that they were cultivating the property for more than 30 years. They have converted the Karinilam to Nernilam. They have filled huge pits in the property by dumping earth. They spent an amount of Rs.40,000/- for the said purpose. They have also raised a portion of the paddy field on the northern side, for which they had spent an amount of Rs.5,000/-. They have also planted coconut seedlings. In the event of the plaintiff being found to be entitled to recover possession of the property, they should be granted the right to recover the value of improvements. According to them, the property fetches an annual income of Rs.1,000/-. The right of the plaintiff to claim mesne profits was also disputed. Therefore, they prayed for dismissal of the suit. A.S.No.534/1998 5 7. On the above pleadings, the suit was tried by the court below. The trial court framed six issues. 1) Whether the plaintiff is entitled to recovery of plaint schedule property from defendants 1 and 2. 2) Whether the plaintiff is entitled to mesne profits and, if so what is the quantum thereof. 3) Whether the allegation of the defendants 1 and 2 that they are in possession of about 61 cents of property on the western side of plaint schedule property comprised in sy.No.436/1 of Vechoor Village is true. 4) Whether the suit is barred by adverse possession and limitation? 5) Reliefs and costs. 6) Whether the defendants 1 and 2 are entitled to realise any amount as value of improvements. If so, what is the quantum? 8. The evidence in the case consists of the oral testimony of the plaintiff as PW1 and Exts.A1 to A4 documents, while the defence examined DWs.1 to 3 as witnesses and marked Exts.B1 to B4 documents. On an elaborate consideration of the pleadings and evidence, the court below found that the plaintiff, third and fourth defendants are having title over the plaint schedule property and that they were co-owners of the property. Therefore, the plaintiff was A.S.No.534/1998 6 found to be entitled to claim recovery of possession of the property. The claim of adverse possession and limitation set up by defendants 1 and 2 was found against. Defendants 1 and 2 were also found not entitled to realise the value of the improvements. At the same time, the plaintiff was found to be entitled to recover mesne profits at the rate of Rs.1,000/- per annum. Thus, the suit has been decreed with costs. This appeal is against the said judgment and decree of the court below. 9. I have heard the learned counsel for the appellant and the respondents. I have gone through the records including the deposition of the witnesses. 10. The points that arise for consideration are: 1) Whether the claim of the respondents for recovery of possession is liable to be rejected for the reason that the appellants have perfected their right by adverse possession and limitation? 2) Whether the appellants are entitled to recover the value of the improvements as claimed? 11. Point No.1: It is contended by the learned counsel for the appellant that the court below seriously went wrong in decreeing the A.S.No.534/1998 7 suit, as prayed for. According to the appellants, they were in possession of the property from 1962 onwards continuously, that their possession was hostile to that of the title holders and therefore they have perfected their title to the plaint schedule property by their long and continuous possession. It is further contended that in the event of it being found that the plaintiffs are entitled to recover possession of the property, they should be allowed to recover value of the improvements. They also contended that the property comprised in Sy.No.436/1 of Vechoor Village, having an extent of 61 cents, which has been wrongly included in the description of the plaint schedule property was theirs on the basis of a Kuthakappattam arrangement. 12. As per the description in the plaint, the plaint schedule property is described as a paddy field, having an extent of 4 acres, 51.5 cents comprised in Sy.No.435/1 of Vechoor Village. The boundaries of the property are: East - Vilanguchira South Thozhutharam Nilam West - Thodu North - Property of Krishnan A.S.No.534/1998 8 13. The mother of the plaintiff and defendants 3 and 4 acquired possession over the above property as per the compromise decree in O.S.No.259 of 1122 M.E. The said document is marked as Ext.A1 in the suit. The above document is not challenged by the appellants. Ext.A1(a) is the plan attached to Ext.A1 decree. The plot allotted to the mother of the plaintiff and third and fourth defendants is shown in the plan. A comparison of the boundaries of the plaint schedule property with the boundaries shown in Ext.A1(a) shows that the boundaries mentioned in the plaint schedule tally with the boundaries in Ext.A1(a). It is worth noticing that the description in Ext.A4 also tallies with the description in the other documents. The appellants have not taken out a commission to identify their property or produced any other evidence in support of their contention. When the first defendant was examined as DW1, he has admitted that the property comprised in Sy.No.436/1 extending 61 cents is not lying within the boundaries described in the plaint. Therefore, I have no doubt that the property obtained by the mother of the plaintiff and defendants 3 and 4 under Ext.A1 is the same property that is described as the plaint schedule property. Consequently, it has to be found that the plaintiff and defendants 3 and 4 have title to the plaint A.S.No.534/1998 9 schedule property. 14. According to defendants 1 and 2, the mother had entrusted the property to them for cultivation, in 1962. The status of defendants 3 and 4 are also not disputed. Exts.A2 to A4 documents, that related to suo motu proceedings initiated under the Land Reforms Act, show that the plaintiff and defendants 3 and 4 are described as landlords therein. In the said proceedings, the case of the appellants/defendants 1 and 2 was that they were the tenants in respect of the property, entitled to fixity of tenure under the Kerala Land Reforms Act. It is worth noticing that the consistent case of the appellants has been that, they had been entrusted with the property by the mother of the plaintiff and defendants 3 and 4 to look after the same. According to them, they had been cultivating the property ever since. Therefore, their initial possession was on the basis of the permission granted by the mother of the plaintiff and defendants 3 and 4. The appellants do not say, at any point of time, that their permissive possession became hostile to that of the title holder. There are also no pleadings or evidence as to whether the title holder had noticed any hostile animus on the part of the appellants. The statutory period for determining whether the appellants have A.S.No.534/1998 10 perfected their title by adverse possession can start to run only from the date on which the title holder gets knowledge of such hostile animus on the part of the appellants. There is absolutely no evidence or material regarding any of the above aspects. 15. In the present case, admittedly, the appellants were claiming fixity of tenure under the Kerala Land Reforms Act. Exts.A2 to A4 clearly show that they were asserting their rights as tenants in respect of the plaint schedule property. They had claimed tenancy under the plaintiff and defendants 3 and 4, accepting them to be the title holders of the property. They had taken the matter through the Land Reforms Appellate Authority up to this Court. It has been found that they are not tenants entitled to fixity under the Kerala Land Reforms Act. After having failed to succeed in their claim of tenancy, it is not open to them to turn around and contend that they had perfected title to the very same property, by adverse possession and limitation. It can be seen from Ext.A3 which is the order of this Court in CRP Nos.738/1984 and 860 of 1984 that the appellants had been asserting their rights as tenants and that it was by the said order that their rights were found against them. The said order is dated 12.12.1990. The present suit was filed on 8.1.1992, originally before A.S.No.534/1998 11 the Sub Court, Kottayam. Therefore, it is only after Ext.A3 order that the appellants can be said to have started asserting a hostile animus against the title holders. Since the suit has been filed on 8.1.1992, as noted above, it is clear that the claim of the appellants on the ground of adverse possession and limitation has to fail. In the above view of the matter, the finding of the court below that the plaintiff is entitled to a decree for recovery of possession of the plaint schedule property is perfectly justified. 16. Point No.2: According to the appellants, they have effected improvements in the property to the tune of Rs.45,000/-. They claim that they have filled up portions of the plaint schedule property which is a paddy field and have raised the said property during the period, 1962-1970. They also claim an amount of Rs.5,000/- towards the expenses for construction of a bund in the property. It is to be noted that no independent evidence has been adduced by the appellants to prove their case that they have effected improvements in the property. They have not taken out a commission or adduced any evidence to show that they have constructed a bund or raised the property. Though the appellants have examined DWs.2 and 3, they have been disbelieved by the court below. It is trite that A.S.No.534/1998 12 an appellate court which does not have the benefit of seeing the witnesses should not generally upset the finding of a trial court which saw the witnesses and disbelieved them. Therefore, the evidence of DWs.2 and 3 are also not helpful in deciding whether any improvements have been effected by the appellants as claimed. In view of the above, their claim for value of improvements has been rightly disallowed by the court below. 17. The mesne profits decreed by the court below is based on the admission of the appellants themselves that the annual income from the property is Rs.1,000/-. The said admission has been accepted by the court below to fix the quantum of mesne profits . Therefore, there is nothing wrong in the award of mesne profits also. For the above reasons, the appeal fails and is dismissed confirming the judgment and decree in O.S.No.438 of 1994 of the Sub Court, Pala. No costs. K.SURENDRA MOHAN Judge css/ A.S.No.534/1998 13 K.SURENDRA MOHAN JUDGE --------------------------------------- AS.NO.534 OF 1998 --------------------------------------- JUDGMENT 25.06.2009