IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 AS.No. 851 of 1997(E) --------------------- OS.271/1993 of PRL.SUB COURT,IRINJALAKUDA .................... APPELLANTS: ---------------------- 1. SUKUMARAN, 53 YEARS, S/O.KUDILINGAL KRISHNAN PERINJANAM VILLAGE, KODUNGALLORE TALUK 2. SASINDRAN, 40 YEARS S/O.KUNDILINGAL KRISHNAN PERINJANAM VILLAGE KODUNGALLORE TALUK * 3. NALINI W/O. GOPINATH VELUTHAMANAYIL HOUSE, KOCHI-30, AGED 46 * 4. LALITHA W/O. MOHAN CHEMCHERY HOUSE, AGED 44 CHEMMAOOR.P.O., KANIPAYOOR, TRICHUR * 5. VISALAKSHI, AGED 43 YEARS D/O.KUNDILINGAL KRISHNAN, PERINJANAM VILLAGE, KODUNGALLORE TALUK * 6. USHARANI, 38 YEARS, W/O. RAJU KARATTUPARAMBIL HOUSE P.O.KIZHAKKUMURI, PERINGOTTUKARA, TRICHUR * APPELLANTS 3 TO 6 ARE TRANSPOSED OF AS SUPPLEMENTAL R2 TO R5 VIDE ORDER DATED 23.2.2006 ON I.A.NO.224/2006 BY ADV. SRI.N.N.SUGUNAPALAN, SENIOR ADVOCATE SRI.P.RAMACHANDRAN 2 RESPONDENT(S): -------------------------- 1. SUDHAKARAN.K.K., 509/455 MURUGAN NAGAR, KANDY ROAD, KELANIYA, SRI-LANKA, PRESENT ADDRESS K.K.SUDHARAN 54 YEARS, S/O.KUNDILINGAL KUMARAN, PERINJANAM VILLAGE, KODUNGALLORE TALUK TRICHUR DISTRICT. SUP.R2. NALINI W/O. GOPINATH VELUTHAMANAYIL HOUSE, KOCHI-30, AGED 46 SUP.R3. LALITHA W/O. MOHAN CHEMCHERY HOUSE, AGED 44 CHEMMAOOR.P.O., KANIPAYOOR, TRICHUR SUP.R4. VISALAKSHI, AGED 43 YEARS D/O.KUNDILINGAL KRISHNAN, PERINJANAM VILLAGE, KODUNGALLORE TALUK SUP.R5. USHARANI, 38 YEARS, W/O. RAJU KARATTUPARAMBIL HOUSE P.O.KIZHAKKUMURI, PERINGOTTUKARA, TRICHUR. * APPELLANTS 3 TO 6 ARE TRANSPOSED OF AS SUPPLEMENTAL R2 TO R5 VIDE ORDER DATED 23.2.2006 ON I.A.NO.224/2006 ADV. SRI.P.N.RAMAKRISHNAN NAIR FOR R SRI.P.VISWANATHAN FOR R THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06/07/2009, ALONG WITH RFA NO. 188 OF 2007 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = A.S.No.851 of 1997 & R.F.A.No.188 of 2007 = = = = = = = = = = = = = = Dated this the 6 th day of July, 2009 JUDGMENT Both these appeals were originally filed by the common defendants 2 to 7 in O.S.No.265 of 1993 and O.S.No.271 of 1993 on the file of the Principal Sub Court, Irinjalakuda. Subsequently as per the order dated 23.2.2006 in I.A.No.224 of 2006 passed in A.S.No.851 of 1997 defendants 4 to 7 who were appellants 4 to 7 in these appeals were permitted to be transposed as respondents 2 to 5. A.S.No.851 of 1997 arises out of O.S.No.271 of 1993 referred to above. RFA No.188 of 2007 was originally filed as A.S.No.270 of 1997 before the District Court, Thrissur. The said appeal was filed against the judgment and decree in O.S.No.263 of 1993. Subsequently, the said appeal was withdrawn to this Court and re-registered as RFA No.188 of 2007. The common 1st respondent in both these appeals is A.S.Nos.851/97 & RFA 188/2007 2 the common plaintiff in both the original suits referred to above. O.S.No.265 of 1993, which was the 1st suit, was one for recovery of possession of the plaint schedule property admeasuring 67 cents comprised in Survey No.288/6 of Perinjanam village on the strength of the plaintiff's title. O.S.No.271/93 filed by the same plaintiff was one for partition and recovery of possession of the plaintiff's ½ share over two items of immovable properties. Item No.1 is having an extent of 2.12 acres comprised in Survey No.287/2 and item No.2 is having an extent of 89 comprised in Survey No.287/3 of Perinjanam Village. 2. The case of the plaintiff in O.S.No.265/93 can be summarised as follows:- The plaint schedule property was acquired by the plaintiff as per Ext.A1 release deed dated 10.2.1958 registered as document No.189/1958 of the Sub Registry Office, Mathilakam At the time of getting the said release in A.S.Nos.851/97 & RFA 188/2007 3 favour of the plaintiff, he was a minor. The parents of the plaintiff were not alive at the time of the said release. On account of that the plaintiff was represented by his paternal uncle Krishnan who was looking after the affairs of the plaintiff. The plaintiff was residing along with his paternal uncle Krishnan. Krishnan was having own business at Ceylon. After the plaintiff became a major he was taken to Ceylon by Krishnan. The plaintiff was residing under the care of Krishnan at Ceylon and was later seeking of his livelihood at Ceylon. The plaintiff started his own business with the earnings of his employment at Ceylon. The plaint schedule property is lying contiguous to the co-ownership property belonging to the two brothers Kumaran and Krishnan. Whenever the plaintiff came from Ceylon he used to reside in the house in the co-wnership property and used to appropriate the income from the plaint schedule property lying adjacent to the co-ownership property. When the A.S.Nos.851/97 & RFA 188/2007 4 plaintiff's paternal uncle Krishnan was in the native place, he used to possess the plaint schedule property on behalf of the plaintiff. Krishnan came permanently to Kerala from Ceylon in the year 1964. Thereafter the plaint schedule property was managed by Krishnan as an agent of the plaintiff and used to account for the profits therefrom as and when the plaintiff came from Ceylon. Krishnan died in the year 1985. Since the plaint schedule property is lying adjacent to the co-ownership property over which the plaintiff and defendants have rights, the plaintiff had entrusted the 2nd plaintiff to possess and look after the plaint schedule property on behalf of the plaintiff. The said entrustment was until partition of the co-ownership property. After the death of Krishnan there were mediation talks for the partition of the co-ownership property. Since no final decision could be arrived at, the plaintiff has instituted another suit seeking partition of the co-ownership A.S.Nos.851/97 & RFA 188/2007 5 property. Eventhough the plaint schedule property is in the possession of the 2nd defendant on behalf of the plaintiff, the other defendants are also impleaded in the present suit since the co-ownership properties are also lying adjacent to the plaint schedule property. Although the plaintiff demanded the defendants several times to surrender possession of the plaint schedule property, the defendants have been postponing the same stating one reason or the another. Hence the plaintiff is constrained to institute the present suit. The plaint schedule property fetches an annual income of Rs.1600/- . A decree may be passed for recovery of possession with mesne profit at the above rate. The cause of action for the suit arose on 1.04.1993 when the plaintiff demanded the defendants to surrender vacant possession of the plaint schedule property and thereafter within the limits of the Sub Court, Irinjalakuda. Hence the suit. A.S.Nos.851/97 & RFA 188/2007 6 3. The 1st defendant died pending suit on 14.4.1994. The suit was resisted by the defendants 2 to 7 by the 2nd defendant filing a separate written statement and defendants 3 to 7 filing a joint written statement. The contentions of the 2nd defendant can be summarised as follows:- The suit is not maintainable either in law or on facts. The plaintiff has no cause of action to institute a suit of this nature. The suit is devoid of any bona fides. The rights of the plaintiff, if any, are lost by adverse possession and ouster. Krishnan and , after his death, these defendants have been in exclusive and uninterrupted possession of the plaint schedule property for more than 30 years. Consequent on the death of the 1st defendant on 14.4.1994 defendants 3 to 7 are each entitled to 1/6th share over the plaint schedule property. The person shown as the plaintiff is a fictitious person, since there is no such person in the A.S.Nos.851/97 & RFA 188/2007 7 address shown in the plaint. The suit is liable to be dismissed for that reason alone. The suit has been instituted by a Sri Lankan citizen by name K.K.Sudhakaran who had mislead the court into believing that he is an Indian citizen permanently residing in India. The said person had come to Kerala by air through Thiruvananthapuram on 14.2.1993 on the strength of Sri Lankan passport and had returned to Sri Lanka by 13.3.1993. He is residing along with his family in Sri Lanka. He has no locus standi to institute the present suit describing himself as the plaintiff. As per the existing law there are restrictions on the plaintiff from keeping possession and seeking partition of properties in India. The suit is barred under Sections 9 and 83 C.P.C. As per the provisions of the Foreign Exchange Regulations Act, 1973, a Sri.Lankan citizen cannot acquire or hold immovable properties in India without the previous permission of the A.S.Nos.851/97 & RFA 188/2007 8 Reserve Bank of India. The plaintiff has not obtained any such permission. Therefore he cannot be heard to say that he has acquired or possessed the plaint schedule property. For that reason also the suit is liable to be dismissed. It is true that plaintiff's father Kumaran and Krishnan, the husband of the 1st defendant, and father of defendants 2 to 7 were brothers. Kumaran was elder to Krishnan. Krishnan was in Ceylon for a very long period and was carrying on his own business. He was sending money to his elder brother Kumaran who was in Kerala He was acquiring properties with his own funds. Kumaran was not having any income of his own nor any employment. It was Kumaran who was managing the properties of Krishnan taking the income on behalf of Krishnan and accounting for the same. While so, Kumaran died in the year 1943 at native place. At that time the plaintiff who was the only heir of Kumaran was a minor aged only 3 years. The A.S.Nos.851/97 & RFA 188/2007 9 plaintiff who was the sole heir and son of deceased Kumaran was taken by Krishnan to Ceylon and educated and looked after there expending money from his own pocket. It was Krishnan who fetched a business for the plaintiff by expending money. While so, in the year 1966, there was an oral partition between the plaintiff and Krishnan with regard to the properties in India and Ceylon. As per the said partition the business which was in the name of the plaintiff and in the joint names of the plaintiff and Krishnan at Ceylon were all set apart to the share of the plaintiff and the properties in India were set apart to Krishnan. Thereafter, Krishnan had not taken any income from the properties and business in Ceylon and the plaintiff was exclusively appropriating the income therefrom. Likewise, Krishnan was keeping possession of the properties in India and appropriating the income therefrom without any demur and openly and uninterruptedly. The A.S.Nos.851/97 & RFA 188/2007 10 plaintiff does not have any sort of right or possession of the properties in India While so, on 7.2.1985 Krishnan died and the properties owned and possessed by Krishnan devolved on his wife and children who are defendants 1 to 7 who have been in possession and enjoyment of the properties uninterruptedly and openly and as of right from the year 1985 onwards. The plaintiff had been spreading news to the effect that the properties and business concerns set apart of the share of the plaintiff at Ceylon as per the oral partition were lost on account of insurgency and invasions by terrorist owing allegiance to the LTTE and that the plaintiff had become a pauper. It is thereafter that the plaintiff has laid a claim over the plaint schedule property by dishonest means. The suit has been filed as a speculative measure. The plaint schedule property excluding the buildings etc. was purchased by deceased Krishnan through his brother Kumaran as per Ext.B1 A.S.Nos.851/97 & RFA 188/2007 11 release deed dated 10.2.1958. Since Krishnan was in Sri Lanka and Kumaran was in the native place, property was purchased in the joint names of Krishnan and Kumaran only for the easy management of the property in the absence of Krishnan. Name of Kumaran was mentioned in the document only for the purpose of smooth administration of the property. As Krishnan was in Ceylon and Kumaran alone was available in the native place, the property was given on tenancy right to one Lonappan by executing Ext.B2 lease deed dated 11.2.1940. After the death of the said Lonappan his children continued the tenancy right over the property and were in possession of the same. While so Kumaran died and thereafter Krishnan returned to the native place and got Ext.B3 release deed dated 10.2.1958 executed in his favour. Since the original lease was given by Kumaran on behalf of Krishnan and Kumaran by that time had died, the name of the plaintiff was merely joined in A.S.Nos.851/97 & RFA 188/2007 12 the release deed. But the exclusive right of Krishnan over the property was not in any way affected by the junction of the plaintiff. After the advent of the Kerala Land Reforms Act suo motu proceedings were initiated by the Land Tribunal for assigning the tenancy rights of Krishnan over the 67 cents of property as S.M.No.272/81 and accordingly a certificate of purchase dated 24.3.1982 was issued in the name of Krishnan alone. Thereafter, Krishnan had constructed buildings in the said property and was in exclusive possession and enjoyment of the property. While so, on 07.02.1985 Krishnan died and defendants 1 to 7 who are his wife and children, have been in possession of the suit property openly, uninterruptedly and as of right. It is not correct to say that there is co-ownership property belonging to deceased Kumaran and Krishnan and that the plaint schedule property is lying contiguous to the said co- ownership property. The buildings in the plaint schedule A.S.Nos.851/97 & RFA 188/2007 13 property were constructed by Krishnan out of his own resources and the plaintiff has absolutely no manner of right or possession over the same. The plaintiff has never enjoyed the income from the plaint schedule property as alleged. It is not correct to say that deceased Krishnan was keeping possession of the property on behalf of the plaintiff. Krishanan came to native place and started permanent residence in the year 1966. It is not correct to say that Krishnan came to the native place forever in the year 1964. He was not keeping possession of the property as an agent of the plaintiff as alleged. There was no occasion for Krishnan to account for the profits from the plaint schedule property to the plaintiff. The 2nd defendant was never entrusted with the property by the plaintiff and the allegations made in that behalf in the plaint are absolutely false. There is no property in India over which the plaintiff has any joint right or possession or partible interest. The A.S.Nos.851/97 & RFA 188/2007 14 alleged mediation or the demand for partition etc. is false. The plaintiff had started to spread a news to the effect that all his properties and business in Ceylon were lost due to the terrorist activities of LTTE. Thereafter, he had approached defendants 1 and 2 directly and through mediators praying for their indulgence and to help him by gifting some properties in his favour. The plaintiff had never demanded partition of the properties. He has no right also to do so. The annual income stated for the plaint schedule property is excessive. The property will not fetch more than 600 rupees per year. The plaintiff is not entitled to any of the reliefs prayed for in the suit which may be dismissed by declaring the 1/6 share of defendants 2 to 7 each over the properties. 4. Defendants 3 to 7 had also filed a joint written statement raising contentions almost similar to those raised by the 2nd defendant. A.S.Nos.851/97 & RFA 188/2007 15 5. The court below framed the following issues:- 1. Whether the suit is maintainable under Section 83 and 9 of the Code of Civil Procedure? 2. Whether the plaintiff's right is barred by limitation. 3. Whether the plaintiff is entitled for recovery of possession of plaint schedule properties? 4. What is the quantum of mesne profts available from plaint schedule properties? 5. Reliefs and costs? Addl.6. Whether the plaintiff is barred to claim the reliefs in view of the provisions of F.E.R.A? 6. The case of the plaintiff in O.S. No. 271 of 1993 is as follows:- The plaintiff's father Kumaran and Krishnan who was the husband of the 1st defendant and father of defendants 2 to 7, were brothers. Both Kumaran and Krishnan are no more. Both of them were in Ceylon right from their childhood. Plaint schedule item Nos. 1 and 2 were acquired jointly by Kumaran and Krishnan as per Ext.A2 sale deed dated 07.01.1940 and Ext.A3 sale deed dated 12.02.1940 A.S.Nos.851/97 & RFA 188/2007 16 respectively. Both of them were jointly keeping possession of the properties as per the said documents. After the death of Kumaran, the father of the plaintiff, there was an attempt to give the plaintiff's ½ right share over the properties at the instance of one Thandassery Andikutty Master and others as mediators. However, their mediation was not acceptable to the defendants and the request for partition was not acceded to. The plaintiff is entitled to partition and separate possession of his ½ share over the plaint schedule property. The properties will fetch an income of Rs.10,000/- per year. The plaintiff is also entitled to future mesne profits as well. The cause of action arose on 01.04.1993 when the plaintiff made an attempt for partition and thereafter within the limits of Sub Court Irinjalakuda. Accordingly, a decree may be passed for partition and separate possession of the plaintiff's ½ right over the plaint schedule properties with future profits and A.S.Nos.851/97 & RFA 188/2007 17 also costs. 7. The 1st defendant died pending suit on 14.04.1994. 8. The suit was resisted by defendants 2 to 7 by the 2nd defendant filing a separate written statement and defendant 3 to 7 filing a joint written statement. The 2nd defendant contended as follows:- The suit is not maintainable either in law or on facts. The suit has been instituted without any bona fides. The rights of the plaintiff, if any, have been lost by ouster and adverse possession since Krishnan, the ancestor of these defendants and after his death defendants 1 to 7 have been in open, uninterrupted and peaceful possession of the suit properties as of right for more than 30 years. The plaintiff is a fictitious person since there is no person domiciled in India as shown in the plaint. The suit is instituted by a Srilankan citizen misleading the court that he is an Indian citizen permanently residing in India. He is actually holding A.S.Nos.851/97 & RFA 188/2007 18 a Srilankan passport and had come to Kerala on 14.02.1993 by air through Thiruvananthapuram and had returned to Srilanka on 30.05.1993. He is permanently residing along with his family in Srilanka. He will, however, be referred to as the plaintiff for the purpose of this written statement. There are legal restrictions for the plaintiff to acquire and hold properties in India. The suit is barred under Sections 9 and 83 of the Code of Civil Procedure. The plaintiff who is a Srilankan citizen and a non-Indian foreigner cannot keep possession of the immovable properties in view of the provisions of the Foreign Exchange Regulations Act, 1973 without obtaining the previous permission of the Reserve Bank of India. The plaintiff has not obtained any such permission. Therefore, he does not have any right or possession over the plaint schedule properties nor any locus standi to institute a suit of this nature. The suit is liable to be dismissed on that short ground. Plaintiff's father A.S.Nos.851/97 & RFA 188/2007 19 Kumaran and Krishnan, the husband of the 1st defendant and father of defendants 2 to 7 were brothers. Plaintiff's father Kumaran was elder to Krishnan. Krishnan was in Ceylon for the past several years and was residing there and conducting his own business. He had acquired properties in Kerala by sending money to his elder brother Kumaran. Kumaran was not having any source of income or occupation. It was Kumaran who was managing the properties of Krishnan by employing paid employees and he was taking the income therefrom and keeping accounts for the same. While so, Kumaran died in the year 1943 in India. The plaintiff who was the son and solitary heir of Kumaran, was then aged only three years. Therefore, Krishnan took the plaintiff to Ceylon and was looking after him at his own expense. By investing money, Krishnan set up a business for the plaintiff. Thereafter, in the year 1966, when Krishnan shifted his residence permanently to India, there A.S.Nos.851/97 & RFA 188/2007 20 was an oral partition between Krishnan and the plaintiff whereby the plaintiff was given the properties and business of Krishnan in Ceylon and Krishnan was given all the properties in India. Pursuant to the said partition, Krishnan after entrusting all his properties and business in Ceylon with the plaintiff, returned to India in the year 1966. Thereafter, Krishnan was keeping possession of the properties in India and appropriating the income therefrom and effecting improvements thereon. , Krishnan was in possession of the properties openly, uninterruptedly, peacefully and as of right and plaintiff was not having any sort of right or possession over the properties in India. While so, on 07.02.1985 Krishnan died and thereafter the properties have been in the exclusive possession and enjoyment of his wife and children who made improvements thereon including the construction of buildings thereon and were possessing the properties without any objection. The A.S.Nos.851/97 & RFA 188/2007 21 plaintiff started to spread a news to the effect that all the assets and business of the plaintiff were lost on account of bombing and terrorist activities of a terrorist outfit by name L.T.T.E and that the plaintiff was reduced to the position of a pauper. Such a propaganda was made by the plaintiff from 1985 onwards. Thereafter, the plaintiff has been resorting to all sorts of unfair and treacherous means to lay claim over the plaint schedule properties. Even though the plaint schedule properties were jointly acquired in the names of Kumaran and Krishnan, the acquisitions were actually in the manner mentioned above and Krishnan has been in exclusive possession and enjoyment of properties and Krishnan was in uninterrupted possession of the properties to the exclusion of all others including the plaintiff and after the death of Krishnan on 07.02.1985, his wife and children have been in possession of the same by even ousting the plaintiff. After the death of Krishnan the A.S.Nos.851/97 & RFA 188/2007 22 plaintiff had sought help from this defendant on the allegation that all his properties in Srilanka were lost on account of the terrorist activities of the L.T.T.E. The plaintiff had threatened to commit suicide if he was not given on gift some properties out of compassion. But, he had treacherously got prepared Ext.A4 draft partition deed so as to make it appear that the defendants had conceded his demand for partition. The said document was got executed dishonestly by practicing fraud. The plaintiff cannot claim any sort of right over the properties. On the strength of Ext.A4 draft, he does not have any right or possession over the plaint schedule properties so as to claim partition and separate possession of the same. The income from the properties as shown in the plaint is exaggerated and excessive. The property will not fetch more than Rs.600/- per year. The plaintiff is also not entitled to any profits. The plaintiff has no cause of action A.S.Nos.851/97 & RFA 188/2007 23 against this defendant. The plaintiff is disentitled to any of the reliefs prayed for in this suit. The suit may be dismissed with costs. 9. Defendants 3 to 7 also filed a joint written statement raising contentions almost similar to the contentions raised by the 2nd defendant. 10. The court below framed the following issues for trial in O.S. No. 271 of 1993:- 1. Whether the suit is maintainable? 2. Whether the right of plaint schedule property is barred by limitation and ouster? 3. Whether the plaintiff's suit is barred by adverse possession and limitation ?