IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 SA.No. 834 of 2002(G) ----------------------------------- AS.171/1996 of III ADDL. DISTRICT COURT, KOLLAM OS.515/1991 of MUN-MAGI COURT, PARAVOOR .................... APPELLANTS/APPETS.1&2& ADDL.4&5,7 TO 9/DEFTS.5,6&10 TO 13: 1. VISALAKSHY, SHAJI BHAVAN, ELAMKULAM, KOTTACHERAM, PARIPALLY. 2. SREEDHARAN OF DO. DO. 3. SARASWATHY, CHARUVILA VEEDU, DO. DO. 4. VILASINI, OF DO. DO. 5. ASOKAN, OF DO. DO. 6. VASANTHARAN, OF DO. DO. 7. SULOCHANA, OF DO. DO. DO. BY ADV. SRI.V.PREMCHAND SMT.ASHA JYOTHI RESPONDENTS/RES.2 TO 15 &/6TH APPNT./DEFNTS. 1 TO 4, 8 TO 14: 1. NADARAJAN, MUNDUM THALACKAL VEEDU, KOTTAPPURAM, PARAVOOR. 2. CHANDRARAJAN, OF DO. DO. 3. THANKAMMA, OF DO. DO. 4. SASIDHARAN, KUNIL VEEDU, NADACKAL, PARIPPALLY. 5. RETNAMMA, MURIKAVILASAM, KOTTACKERAM, ELAMKULAM, PARIPPALLY. 6. OMANA, PUTHUVAL PUTHEN VEEDU, MURUKAVILASAN, DO. DO. 7. ASOKAN, OF DO. DO. 8. VASANTHA RAJAN, OF DO. DO. 9. VILASINI, OF DO. DO. 10. SULOCHANA, SYAM NIVAS, KOTTAPPURAM, PARAVOOR. 11. SANTHAKUMARI, BHARGAVAN BHAVAN, KOTTACKERAM CHERRI, ELAMKULAM, PARIPPALLY VILLAGE 12. SYAMALAKUMARI, AGED 45 YEARS, W/O.K.BHARGAVAN, BHARGAVA BHAVAN, DO. DO. 13. B.SYAMSUDHA, AGED 23 YEARS, OF DO. DO. 14. B.SYAM, AGED 21 YEARS, OF DO. DO. DO. 15. OMANA, CHARUVILA VEEEDU, DO. DO. BY ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON FOR R12,13,14 SRI.M.KRISHNAKUMAR FOR R12,13,14 THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. --------------------------- S.A.No. 834 of 2002 --------------------------- JUDGMENT Defendants 5 and 6 and the legal representatives of the deceased seventh defendant, who were respectively appellants 1 and 2 and additional appellants 4 to 9 in A.S.No.171/96 on the file of the District Court, Kollam, filed assailing the judgment and decree passed by the trial court, are the appellants in this second appeal, assailing the concurrent decrees and judgments passed by the courts below. 2. The first respondent, who was the original plaintiff, instituted O.S.No.515/91 on the file of the Munsiff's Court, Paravoor in Kollam District for a decree of declaration and partition, inter alia on the allegations that the scheduled properties of one acre and thirty three cents comprised in Sy.No.11062 of Parippally Village with the adjoining property of 53 cents belonged to Velayudhan Raman; that he executed mortgage in 1103 SA 834/01 2 and 1121 M.E.; that the mortgage right later got vested with Kochappi Janaki, the wife of the seventh defendant and the mother of defendants 5 and 8 to 13 vide Document No.2233/1121; that the jenmi Velayudhan Raman expired and the jenm right devolved on his children Neelakandan, Kesavan, Velu, Padmanabhan and Raghavan, each being entitled to 1/5 share; that while so, on 16.8.1963, the mortgagee Kochappi Janaki executed Exhibit A7 Release Deed in favour of the children of Raman; that as per Exhibit A8, the children of Raman, namely, Neelakantan and others, executed sale deed in favour of Kochappi Janaki with respect to 53 cents of property from out of one acre and eighty six cents, which stood under mortgage originally; that Raman Neelakantan and Raman Kesavan died and their rights devolved on their children (ten children each); that Raman Padmanabhan and Raman Raghavan died unmarried and issue less at Singapore after the death of Neelakantan and Kesavan; that SA 834/01 3 the only surviving brother Raman Velu was the legal heir of Raghavan and Padmanabhan; that Raman Velu and the legal heirs of late Neelakantan and Kesavan were in possession of the scheduled property paying tax; that on 11.1.1979, Raman Velu, Neelakantan, Dharmarajan and Kesavan Parameswaran executed Exhibit A1 sale deed in favour of the plaintiff in relation to the scheduled property and handed over Exhibit A7 release deed; that ever thereafter, the plaintiff is in possession of the said property; that he has constructed a shed as a prelude to the construction of a house for which the foundation has also been put up; that he also made other improvements in the property; that Kochappi Janaki, her husband the seventh defendant and their children were not happy with the purchase of the property by the plaintiff and they attempted to block the pathway to the property and attempted to trespass upon the scheduled property and that thereupon, the plaintiff filed O.S.No.52/79 against SA 834/01 4 defendants 5 to 7 and Kochappi Janaki; that they contended that they are in possession of the scheduled property on the basis of oral lease; that they filed SMP 15/79 before the Special Tahsildar, Kollam, but that was dismissed; that appeal filed before the Appellate Authority, Attingal as A.A.No. 126/80 was also dismissed; that therefore, the fifth defendant cannot contend that she has got oral lease of the scheduled property and that claim is barred by res judicata and estoppel; that O.S. No.52/79 was dismissed; that the appeal and the second appeal filed therefrom were also dismissed, but, while disposing of the appeal, the District Court directed that the plaintiff may prefer a suit for partition and hence the suit. The plaintiff further alleged that five children of deceased Velayudhan Raman had 10/50 share each over the plaint schedule property and ten children each of Neelakantan and Kesavan got 1/50 share each and Raman Velu got 3/5 share, which is equal to 30/50, SA 834/01 5 including the rights of his brothers Padmanabhan and Raghavan, who died unmarried and issue less; that as per Exhibit A1 sale deed, he got 30/50 share of Raman Velu and 1/50 share each of Neelakantan Dharmarajan and Kesavan Parameswaran; that Kesavan Damodaran and Kesavan Kamalabhai sold their 2/50 share in favour of the plaintiff as per Exhibit A2; that Kesavan Yesoda sold her 1/50 share to the plaintiff as per Exhibit A3; that Maniamma, Santhakumari and Somaraja and other children of Neelakantan also sold their 3/50 right to the plaintiff as per Exhibit A4 sale deed; that Kesavan Chandran sold his 1/50 share to the plaintiff as per Exhibit A5; that Bharatharajan, Nalini and Leela sold their 1/50 share each in favour of the plaintiff as per Exhibit A6; that Balakrishnan, Gopi, Sarada and Sarasamma, the children of Kesavan sold their right in favour of the fourth defendant and on the basis of that the fourth defendant filed O.S.No.433/80; that defendants 1 to 3 have got 1/50 SA 834/01 6 share each from the scheduled property and the remaining 47/50 share belongs to the plaintiff and therefore, the plaintiff's 47/50 share has to be declared and the property has to be partitioned and separate possession of his share has to be allotted to him. It is further prayed that if any portion of the property that falls to the share of the plaintiff is found to be in possession of defendants 4 to 6 and Kochappi Janaki, recovery thereof has to be allowed with mesne profits. 3. Defendants 5 to 7 resisted the suit. All other defendants remained ex parte. Defendants 5 to 7 contended that all the sale deeds relied on by the plaintiff are sham documents and were executed without any consideration; that the scheduled property is possessed by the fifth defendant effecting improvements and taking yield from 1963 onwards continuously and uninterruptedly as per an oral lease; that the sixth defendant, being the husband of the fifth defendant, is also in SA 834/01 7 possession and enjoyment of the said property; that the sale deeds in favour of the plaintiff were got executed fraudulently; that the fifth defendant's mother Janaki got possession of the properties extending to 1.86 acres, including 53 cents as per a mortgage of the year 1121 M.E.; that the said mortgage right happened to be redeemed just for name sake; that the fifth defendant has continued to be in possession as lessee and the original landlords never came to possess the property as per the release deed; that the plaintiff attempted to trespass into the property and put up thatched hut; that defendants 5 and 6 made a complaint to the police and the police registered case against that; that thereupon, the plaintiff filed O.S.No.52/79 and that has been dismissed; that the appeal and the second appeal filed therefrom were also dismissed; that possession and enjoyment of the properties by defendants 5 and 6 is continuous and uninterrupted; that the plaintiff has no right to SA 834/01 8 challenge the rights of the defendants and that the suit is barred by res judicata by the decision in O.S.No.52/79. 4. The trial court raised necessary issues for trial on the basis of the above pleading and considering the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DWs1 to 4 and documentary evidence Exhibits A1 to A17 and B1 to B5, decreed the suit, declaring that the plaintiff is entitled to 43/50 share in the scheduled property and allowed partition and separate possession of plaintiff's share and for recovery thereof with mesne profits from the contesting respondents. It was also made clear that the fifth defendant is liable for mesne profits from the date of the suit, the quantum of which will be assessed during the final decree proceedings. It was further made clear that the plaintiff shall be entitled to right of way to the property that may be allotted to his share and SA 834/01 9 covered by Exhibits A7 and A8 documents. Defendants 5 to 7 were also made liable for the cost of the suit. 5. Aggrieved by the decree of the trial court, defendants 5 to 7 filed A.S.No.171/96 against the plaintiff and other defendants in the suit. The seventh defendant, who was the third appellant, died pending the said appeal and his legal representatives were impleaded as additional appellants 4 to 9. Similarly, the original plaintiff, who was the first respondent, also died and his legal representatives were impleaded as additional respondents 13 to 15. The first appellate court considered the appeal on merits and concurring with the findings of the trial court, dismissed the said appeal and hence this second appeal by the aggrieved appellants. 6. When the matter came up for admission hearing, the only contention that was advanced before me by the learned counsel for the SA 834/01 10 appellants, assailing the concurrent verdicts passed by the courts below is that the courts below have negatived the claim of adverse possession advanced by the fifth defendant assigning the reason that there is no sufficient plea in the written statement, which enables a plea of adverse possession being urged and considered. According to him, it is pleaded in the written statement that right from 1963 onwards, the fifth defendant was in absolute and exclusive possession of the scheduled property to the knowledge of the plaintiff and that the documents relied on by the plaintiff, including Exhibit A7 release deed, are sham documents. All the same, counsel for the appellant submits that the fifth defendant has no case that Exhibit A7 release deed is sham or void. The counsel for the appellant has passed on to me for perusal a copy of the written statement filed jointly by defendants 5 to 7 wherein, it is contended that on the very date of Exhibits A7 and A8, namely, the release deed in SA 834/01 11 favour of the landlords executed by Janaki and the sale deed executed in favour of Janaki in relation to 53 cents from out of the property covered by the mortgage, the children of Velayudhan Raman, in whom the jenm rights have got vested, had given to the fifth defendant the entire scheduled property by way of lease and it is ever thereafter that she is in exclusive possession and enjoyment of the property. 7. When a contention is raised by the fifth defendant that she has come into occupation of the property under a lease, it pre-supposes that she has no case of her having come into wrongful possession of the scheduled property. A party, who sets up a case that he has come into permissive possession of a property, cannot be heard to contend that his possession has turned to be adverse and that she has perfected title by adverse possession and limitation. In fact, in the written statement, there is no contention to the effect SA 834/01 12 that permissive possession, at any point of time, turned to be adverse to the rights of the real owners in any manner whatsoever. There is, therefore, no merit in the contention that the courts below were repelling the contention of adverse possession on the ground that there is no sufficient pleadings to have such a contention considered. In fact, when permissive possession is alleged, that is sufficient ground to repel the contention of adverse possession. No other point was urged before me by the learned counsel for the appellants. There is absolutely no question of law and much less, any substantial question of law to be considered by this Court in this second appeal. The Second Appeal, in the circumstances, is dismissed in limine, refusing admission. 5th June, 2008 (K.P.Balachandran, Judge) tkv SA 834/01 13 K.P.Balachandran, J. --------------------- S.A.No.834 of 2001 --------------------- JUDGMENT 5th June, 2008