IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 1ST OCTOBER 2010 / 9TH ASWINA 1932 SA.NO. 707 OF 2002() -------------------- {AS.236/2000 OF II ADDL.DISTRICT COURT,ERNAKULAM OS.1739/1997 OF 1ST ADDIONAL MUNSIFF'S COURT, ERNAKULAM} .................... APPELLANT(S)/RESPONDENTS/PLAINTIFFS: -------------------------------------- 1. C.S.CHANDRAMATHY, W/O.LATE NARAYANANKUTTY PANICKER, PENSIONER, PATTUPARAMBIL HOUSE, EROOR WEST, TRIPUNITHURA. 2. ANANDAKUMARI, D/O.LATE NARAYANANKUTTY PANICKER, SCHOOL TEACHER, RESIDING AT RUGMINI NILAYAM, KOLLANGOD, PALAKKAD DISTRICT. 3. PUSHPALATHA, D/O.LATE NARAYANANKUTTY PANICKER, PATTUPARAMBIL HOUSE, EROOR WEST, TRIPUNITHURA. 4. ANANDAKUMAR, S/O.LATE NARAYANANKUTTY PANICKER, PATTUPARAMBIL HOUSE, EROOR WEST, TRIPUNITHURA. 5. JAYANTHI, D/O.LATE NARAYANANKUTTY PANICKER, PATTUPARAMBIL HOUSE, EROOR WEST, TRIPUNITHURA. BY ADV. SRI.T.B.THANKAPPAN SMT.K.DEEPA SMT.ASMI.V.A. RESPONDENT(S)/APPELLANTS/DEFENDANTS: ------------------------------------ 1. DEVAKEY AMMA, W/O.LATE KUMARAN NAIR, VELLAKKADA HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. 2. SASIKUMAR, S/O.LATE KUMARAN NAIR, VELLAKKADA HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. SA.NO.707/2002 3. RAJALAKSHMY, D/O.LATE KUMARAN NAIR, VELLAKKADA HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. 4. RADHAMANI, D/O.PONNAMMA, VELLAKKADA HOUSE, UDAYAMPEROOR, MANAKUNNAM VILLAGE, KANAYANNUR TALUK. ADV. SRI.S.SREEKUMAR FOR R1 TO 4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON 01/10/2010 DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.2213/2002 IN S.A.NO.707/2002 DISMISSED. 01/10/2010 SD/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A. TO JUDGE C.R. S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NO.707 OF 2002 ----------------------------------- Dated this the 1st day of October, 2010 J U D G M E N T Plaintiffs in a suit for fixation of boundary and injunction, are the appellants. Their suit, O.S.No.1739 of 1997, after trial, was decreed by the learned Munsiff, Ernakulam, negativing the challenges raised by the contesting respondents/defendants. However, in the appeal preferred by the defendants, the decree of the trial court was reversed and the plaintiffs were non-suited. Aggrieved by that decision, the plaintiffs have come up with this appeal. 2. Subject matter involved in the suit is fifteen cents of land in Sy.No.248/1/1 in Manakunnam Village in Edappally. Plaintiffs are the wife and children of late Narayanankutty Panicker, who admittedly obtained title over the property under Ext.A1 sale deed. The 1st defendant is the sister of late Narayanankutty Panicker and defendants 2 and 3 are the S.A.NO.707/2002 2 children of the 1st defendant. The 4th defendant is the daughter of another sister (deceased) of Narayanankutty Panicker. To the north adjoining the plaint property is the tharawad property comprising tharawad building of late Narayanankutty Panicker and the 1st defendant. After the death of Narayanankutty Panicker, according to the plaintiffs, there was obstruction from defendants 1 to 3 in taking usufructs from the plaint property. Plaintiffs, setting forth a case as above, sought for a decree for fixation of the northern and eastern boundaries of the plaint property and also prohibitory injunction against the defendants from obstructing them from enjoying the property and also putting up fences on the northern and eastern boundaries of the plaint property. The defendants filed a joint written statement, in which, admitting that the plaint property originally belonged to Narayanankutty Panicker, the suit claims were resisted contending that late Narayanankutty Panicker had agreed on 30.1.1970 to sell the property to Kumaran Nair, the husband of the 1st defendant, receiving a sale consideration of Rs.1,000/-. Pursuant to such agreement, Kumaran Nair was put in possession, and on his death, the defendants are continuing in S.A.NO.707/2002 3 possession and enjoyment of the property, according to the defendants. Kumaran Nair had planted coconut trees and fruit bearing trees and they are now aged more than 25 years and the defendants have been in enjoyment of the property, was their further case. It was also contended that by virtue of their long continuous, open and uninterrupted possession since 30.7.1970, the defendants have perfected title by adverse possession and limitation. The tharawad property situate on the northern side is lying contiguously with the plaint property without any boundary, and the whole property is improved and enjoyed by the defendants, and the plaintiffs ever since 1970 have not taken usufructs from the property, according to the defendants. The reliefs canvassed in the suit for fixation of boundary and also for injunction were refuted questioning the entitlement of the plaintiffs thereof. 3. The evidence let in the case consisted of Ext.A1 for the plaintiffs, and DWs.1 to 3 and Ext.B1 series for the defendants. A report and plan prepared by an Advocate Commissioner, who conducted inspection and measurement over the plaint property S.A.NO.707/2002 4 were exhibited as Exts.C1 and C1(a). The learned Munsiff, on the materials placed, concluded that the permissive possession claimed by the defendants under an agreement of sale by the husband of the 1st defendant with the predecessor of the plaintiffs, and also the continuous possession over the property ever since such agreement, was hardly sufficient to establish that the defendants have perfected title over such property by adverse possession. During the pendency of the suit, the parties have settled by compromise a suit for partition relating to the tharawad property situate on the north of the plaint property, which was admitted to by the 1st defendant, examined as DW1, was also taken note of by the learned Munsiff to negative the challenge set up by the defendants disputing the title of the plaintiffs over the property. Having regard to the relationship of the parties and also the closeness of the tharawad property adjoining to the plaint property on its northern side wherein the 1st defendant and her family resided as members of the tharawad, the learned Munsiff concluded that payment of tax over the plaint property by the defendants and collection of usufructs from that property by the defendants would no way S.A.NO.707/2002 5 indicate that such acts were done with animus and hostility challenging the title of late Narayankutty Panicker or his successors, the plaintiffs. Holding that possession over the property as title holders continued with the plaintiffs, the trial court relying on the materials collected by the Advocate Commissioner granted a decree allowing the plaintiffs to put up fences on the northern and eastern boundaries of the plaint property as shown in Ext.C1(a) plan. A decree of perpetual prohibitory injunction was also granted restraining the defendants from trespassing upon the plaint property and obstructing the plaintiffs in enjoying the same and putting up fences on the northern and eastern boundaries of that property. In appeal, the learned District Judge, after re-appreciation of the materials, reversed the findings of the learned Munsiff forming a conclusion that the defendants have established that they are in continuous, uninterrupted possession and enjoyment of the property from 1970 onwards with the animus and hostile intention of treating the property as their own as against the whole world including the true owner. In that view of the matter, the learned District Judge held that S.A.NO.707/2002 6 the plaintiffs are not entitled to a decree of fixation of boundary and permanent prohibitory injunction over the suit property against the defendants. The decree granted by the trial court was set aside and the suit was dismissed by the learned District Judge, allowing the appeal. 4. I heard the counsel on both sides. The lower appellate court was not at all justified in interfering with the decree granted in favour of the appellants/plaintiffs upholding the plea of adverse possession raised by the respondents/defendants as no such plea could have been considered in the nature of the suit, which was only one for fixation of boundary and for injunction, is the submission of the learned counsel for the appellants. It is further contended that where the defendants have set forth a case that their possession commenced on the basis of permission from the predecessor of the plaintiffs, without establishing and proving when such possession became adverse to that of the real owner, and also such adverse possession continued for the statutory period, the contention raised by them on that count to resist the suit claims was totally S.A.NO.707/2002 7 bereft of any merit and should not have received any acceptance from the lower appellate court. Not only that there was no pleading with material particulars to sustain the plea of adverse possession canvassed, the contention raised by the defendants canvassing such a plea was based on the permissive possession alleged to have been obtained under an oral sale agreement from the predecessor of the plaintiffs, it is urged, that such defense, as correctly and rightly found by the trial court, should have received an outright rejection. Pending the present suit, the parties have settled by compromise the claim for partition over the tharawad property situate on the northern side of the plaint property by which the right of the plaintiffs as co-owners of that property was unequivocally recognised by the defendants was more than sufficient to show the hallowness of the claim of adverse possession canvassed in the present suit contending that the suit property with that of the tharawad property as a contiguous plot continued under the enjoyment of the defendants to the exclusion of the plaintiffs and in opposition to their claim of title over the properties, according to the counsel. So much so, in reversal of the decree dismissing the suit by the lower S.A.NO.707/2002 8 appellate court, the learned counsel urged for restoring the decree of the trial court allowing the claims of the plaintiffs for fixing the two boundaries of the suit property and for injunction against the respondents. 5. Per contra, the learned counsel for the respondents stressing upon that in second appeal the correctness on finding of facts cannot be looked into and an interference with the decision of the court below is permissible only where a substantial question of law emerge for consideration contended that the finding entered by the lower appellate court with respect to the claim of adverse possession canvassed by the respondents/defendants being one on facts, on the basis of the materials tendered in the case, the present appeal lacks merit and, in fact, it is not entertainable. The materials tendered in the case, according to the counsel, unerringly established that the defendants are in possession of the property denying the title of the appellants/plaintiffs at least from 1970 onwards, and the plea of adverse possession canvassed by the defendants is proved by the oral as well as documentary evidence produced in S.A.NO.707/2002 9 the case. None of the plaintiffs has mounted the box even to assert the possession claimed by them over the property which was disputed by the defendants, is the further submission of the counsel. Pointing out that the suit was one for fixation of boundary, it is urged that the plaintiffs are not entitled to the relief for fixation of boundary or injunction when the defendants are proved to be in settled possession of the property. Reliance is placed by the counsel on Anjil Vellachi and Others v. Mamuni Bhaskaran alias Vattayil Bhaskaran (2009 (3) KHC 728) to contend that suit for fixation of boundary cannot be a shortcut method for recovery of possession. The long continuous possession over the property by the defendants as established by the oral and documentary evidence tendered in the case clearly spell out that the defendants are having settled possession over the property and that being so, none of the reliefs canvassed in the suit, the fixation of boundary and also injunction can be granted to the plaintiffs, according to the counsel. Declining of such reliefs by the lower appellate court dismissing the suit of the plaintiffs, in the proved facts of the case, does not warrant any interference, submits the counsel. S.A.NO.707/2002 10 When a person is having settled possession over a property, his rights accruing thereof are recognised and even protected, is the submission of the counsel, relying upon Rame Gowda (Dead) by Lrs. v. M.Varadappa Naidu (Dead) by Lrs. and another ((2004) 1 SCC 769). 6. I do not find any merit in the submissions made by the learned counsel for the respondents that the appeal is not entertainable since the decision rendered by the lower appellate court for non-suiting the plaintiffs upholding the claim of adverse possession of the defendants over the suit property, is only a finding of fact arrived on the materials tendered in the case. Suit was only for fixation of boundary and injunction, and no claim of recovery of possession on the basis of title was asked for. A plea of adverse possession raised by the defendants in such a suit has significance only in examining the question whether they are in settled possession, and nothing more. In a suit for injunction or fixation of boundary, that alone, there could be no finding on adverse possession even if such a plea is canvassed by the defendants as no recovery of property is claimed. Perusing the S.A.NO.707/2002 11 materials tendered in the case especially the pleadings of the parties, it is seen, the trial court has rightly and correctly appreciated the defense raised on the plea of adverse possession by the defendants resisting the suit claims of the plaintiffs in the proper perspective and, on the materials placed, has come to the correct conclusion that in view of the close relationship of the parties and also of the admitted fact that the adjoining property, property comprising the tharawad building, is enjoyed by the parties as co-owners, adverse possession claimed by the defendants is unworthy of any merit. Even assuming that the 1st defendant residing in the tharawad property collected usufructs from the plaint property, by plucking coconuts, as she being the sister of the predecessor of the plaintiffs, it cannot be considered as a circumstance expressing a hostile animus to the rights of the title holders, the plaintiffs, was the view of the trial court repudiating the claim of adverse possession canvassed by the defendants. 7. The title of the plaintiffs' predecessor as under Ext.A1 deed is not only not under challenge but admitted by the S.A.NO.707/2002 12 defendants, who claims of a derivative title from him by virtue of an oral agreement of sale from such predecessor of the plaintiffs. So, what the defendants canvassed was permissive possession on the basis of an oral agreement of sale. As and when such permissive possession became adverse to that of the predecessor of the plaintiffs, if it is so, is not pleaded while setting up a claim of adverse possession to resist the reliefs canvassed in the suit. Permissive possession is not at all adverse. Limitation does not commence until possession becomes adverse. Possession does not become adverse until the party against whom such claim is notified of hostile possession. What is seen from the defense canvassed by the defendants in the suit is that on the basis of an oral agreement of sale they are in possession of the property from 1970 onwards, and such possession is claimed as adverse to the plaintiffs. Essentially, they were claiming title to the property under the oral agreement of sale with the predecessor of the plaintiffs. Though the defendants claimed of getting possession under such oral agreement of sale, with full consideration paid immediately thereof, an inconsistent plea which cannot go with the derivatory title under the agreement of S.A.NO.707/2002 13 sale is canvassed by setting up the adverse possession without even stating when the permissive possession of the plaintiffs became adverse to the real owner. The learned counsel for the respondents relying on L.N.Aswathama and another v. P.Prakash ((2009) 13 SCC 229) has contended that asserting right of title over suit property and, at the same time, raising the plea of adverse possession against the plaintiffs/owners, is permissible as the two pleas are not inconsistent but alternative pleas available. I find the decision relied by the counsel cannot be applied to the facts of the case. The Apex Court has only stated that such divergent pleas could be canvassed and treated as alternative pleas available in a case, as in the reported decision, where the defendant is asserting right and title over the suit property as having been derived from a person other than the plaintiffs' owner, and, in the alternative, contending that his hostile possession having continued against the true owner for more than 12 years he has prescribed title by adverse possession. However, where the defendant assert right of title of the property as having been derived from the plaintiff or from his predecessor and where it is shown to be false, a plea of adverse S.A.NO.707/2002 14 possession canvassed by such defendant cannot be treated as an alternative plea, but only an inconsistent plea liable to be rejected. The defendants in the present case have claimed permissive possession over the suit property under an oral agreement of sale from the predecessor of the plaintiffs. In such a case, without discarding such title to the property, which is derivative from the predecessor of the plaintiffs, and pleading and proving their independent title and adverse possession showing from what point of time their permissive possession became adverse to the knowledge of the transferor or his successor-in-interest and continuance of such possession for the prescribed statutory period, a plea of adverse possession is not available to them. The Apex Court in Mohan Lal v. Mirza Abdul Gaffar ((1996) 1 SCC 639) has considered how far the plea of adverse possession can be set up where possession has commenced on permission, and it has been held that the pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. The above preposition of law has been reiterated by the Apex Court in Md.Mohammad Ali v. Jagadish Kalita S.A.NO.707/2002 15 ((2004) 1 SCC 271) and P.T.Munichikkanna Reddy v. Revamma ((2007) 6 SCC 59). The principle laid down as above was not followed in the decision cited by the respondents' counsel in L.N.Aswathama's case (supra) since in that case the facts were different in as much as the defendant therein did not claim title or possession under or through the plaintiffs, but from a different person, while setting up a plea, in the alternative, as to his prescription of title by adverse possession over the plaintiff/owner. The defense canvassed by him to claim title through a person other than the plaintiff/owner would not bar his plea of adverse possession, and in such a case claim of title by adverse possession cannot be considered as an inconsistent plea, but only an alternate plea, is the proposition explained in the reported decision. As indicated earlier in the case of the respondents/defendants herein, the above decision has no application as they have set up title from the predecessor of the plaintiffs, and at the same time, canvassed a plea of adverse possession without renouncing the title claimed by them. In such a case, the principle laid down in Mohanlal's case (supra) apply with full force. In the above decision, the Apex Court has S.A.NO.707/2002 16 held thus: “As regards the first plea, it is inconsistent with the second plea. Having come into possession under the [sale[ agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor-in-title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e. up to completing the period of his title by prescription nec vi, nec clam, nec precario [not by violence, not by stealth, not by permission]. Since the appellant's claim is founded on Section 53-A [of the Transfer of Property Act, 1882], it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.” So, in the nature of the admitted facts pleaded by the defendants in their written statement, they could not have set up a plea of adverse possession without renouncing the title claimed by them from the predecessor of the plaintiffs and, further, furnishing material particulars in such a case as to when their permissive possession became adverse to the real owner and also S.A.NO.707/2002 17 continuous possession, after it became adverse, for the statutory period, to prescribe title adverse to the real owner. The lower appellate court, it is seen, without noticing the mutually conflicting challenges raised by the defendants, one on the basis of title, derivative from the predecessor of the plaintiffs, and the other on adverse possession, that too, without furnishing material particulars in the written statement, egregiously erred in interfering with the decree of the trial court and non-suiting the plaintiffs by upholding the plea of adverse possession raised by the defendants. 8. As adverted to earlier, in the nature of the suit which was one for fixation of boundary and for injunction, what was material was only the possession claimed by the plaintiffs on the basis of Ext.A1 deed. None of the plaintiffs have mounted the box, in the given facts of the case, does not have any significance. The title over the property with their predecessor was admitted to by the defendants, who claimed of derivative title from such predecessor under an oral agreement of sale with an inconsistent plea of adverse possession. Oral agreement S.A.NO.707/2002 18 canvassed by the defendants was repelled by the trial court appreciating the materials tendered. Plea of adverse possession canvassed by them, as indicted earlier, has no merit at all, and deserved only an outright rejection. Then the only question is whether the defendants have possession over the suit property. They contended that as a contiguous plot with the tharawad property on the north of the suit property, it is under their enjoyment. During the pendency of the suit, admittedly, there was a suit for partition over the tharawad property which ended in a compromise recognising the rights of the plaintiffs as co-owners over that property. Further more, as observed by the learned Munsiff, the close relationship of the parties, the 1st defendant is the sister of the predecessor of the plaintiffs and she is in occupation of the building in the tharawad property situated closeby cannot at all be ignored. Even assuming that the 1st defendant residing in the tharawad building closeby exercised management over the suit property, collecting the usufructs thereof as well, it cannot be considered as having possession of the suit property adverse to the interest of the plaintiffs. Over the tharawad property, which lies contiguous S.A.NO.707/2002 19 with the suit property, the plaintiffs are co-owners, with the defendants. When the suit property lies as a contiguous plot with that tharawad property, whatever rights, if any, exercised by the defendants over the suit property have to be considered as acts done on behalf of the owners of the property, the plaintiffs. Payment of tax over the suit property along with other items belonging to the defendants is not a circumstance showing that they have settled possession over the property. The trial court, in the given facts of the case, was fully justified in holding that the defendants have no possession, and any right exercised by them in collecting usufructs from the property, where such property and the tharawad property lie contiguously, does not postulate their possession over the property. Settled possession of the defendants over the property, as canvassed by their counsel, is not established by the materials tendered in the case. So much so, there is no merit in the contention that the suit should have been one for recovery of possession and not for fixation of boundary and injunction alone. 9. There is no merit in the challenge raised based on Anjil S.A.NO.707/2002 20 Vellachi's case (supra) by the learned counsel for the appellants. True, suit for fixation of boundary can never be a shortcut for recovery of possession. However, merely because the defendants in such a suit had set up claim of possession over the suit property and even of having title by adverse possession, it does not follow that the plaintiff has to seek for recovery of possession amending the plaint. The merit of the