Dismissed

Veerankutty v. Nabeeesa

Kerala HC9 Jul 2010SA/136/1994

Case brief

AI extract

What is this about?

The Kerala High Court dismissed an appeal filed by co-sharers challenging a partition suit. The court upheld the lower appellate court's finding that exclusive possession and enjoyment of specific property shares by one branch of the family (Kadir Pillai and heir) over decades, without sharing income or asserting rights by others, constituted adverse possession and ouster. The other co-owners were

What did the court decide?

The appeal was dismissed. No order as to costs.

Veerankutty Vs Nabeeesa — Partition | Kerala HC (2010)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.BHAVADASAN

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FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932

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SA.No. 136 of 1994(G)

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----------------------------AS.110/1987 of III ADDL.SUB COURT, ERNAKULAM OS.222/1981 of ADDL. MUNSIFF COURT, ERNAKULAM

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APPELLANT(S): /APPELLANTS IN AS. 111/87 AND RESPONDENTS IN AS.110/87 -------------------------------------------- IN LOWER COURT/PLAINTIFFS IN THE SUIT.

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1. VEERANKUTTY, AGED 59 YEARS, S/O. KUNJAN MARAKKAR, RESIDING AT KAVUNGAPADATH PUTHUPALLIPRAM.

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*2. KOCHUPATHU, AGED 72 YEARS, D/O. KUNJAN MARAKKAR, RESIDING AT KUTTIKATTU PARAMBIL, CHUTTUPADU KARA, EDAPPALLY NORTH VILLAGE (DIED).

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3. SAREEBA, AGED 54 YEARS, D/O.KUNJAN MARAKKAR, RESIDING AT MALIYAM VEETTIL , DO. DO.

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*4. ALIYUMMA, AGED 76 YEARS, D/O. KUNJAN MARAKKAR, RESIDING AT THOTTUPARAMBIL, PUTHUPALLIPURAM KARA, THRIKKAKARA NORTH VILLAGE (DIED).

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5. SUBAIDA, AGED 44 YEARS, W/O. HAMEED, RESIDING AT KUTTIKATTU PARAMBIL, CHUTTUPADU KARA, EDAPPALLY NORTH VILLAGE.

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6. NAZEER, AGED 24 YEARS, S/O. HAMEED, DO. DO.

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7. SEBEYA, AGED 22 YEARS, D/O. HAMEED, DO. DO.

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8. NAHAS, AGED 20 YEARS, S/O. HAMEED, DO. DO.

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9. JASEELA, AGED 18 YEARS, D/O. HAMEED, DO. DO.

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10. KUNJU MOHAMMED, S/O. ALIYUMMA, THOTTUMPARAMBIL PUTHUPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE.

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11. ABOOBACKER, S/O. DO. DO.

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12. IBRAHIM KUNJU, S/O. DO. DO.

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APPELLANTS 10 TO 12 ARE THE LEGAL REPRESENTATIVE OF DECEASED 4TH

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APPELLANT.

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BY ADV. SRI.K.V.JAYACHANDRAN

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S.A. NO.136/1994

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RESPONDENT(S): /RESPONDENTS IN AS.111/87 & APPELLANTS IN AS.110/87 -------------------------- IN LOWER APPELLATE COURT/DEFENDANTS IN THE SUIT.

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1. NABEESA, AGED 48, D/O. KUNJAN MARAKKAR, RESIDING AT MAROTTIKKA PARAMBIL, PUTHUPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE.

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2. NAINA, AGED 60, S/O. KUTTY, DO. DO.

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3. SALIM, AGED 33, S/O. NAINA, DO . DO.

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*4. RAMLA, AGED 31, D/O. NAINA, DO. DO.(DIED)

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5. RAZIA, AGED 27 , D/O. NAINA, DO. DO.

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6. BABU, AGED 25, S/O. NAINA, DO. DO.

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7. SHARIBA, AGED 54, W/O. KATHIRPILLAI, RESIDING AT KAVUMGAPADATHU, DO. DO.

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8. JAMEELA, AGED 35, D/O. KATHIRPILLAI, DO. DO.

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9. SUBI, AGED 32 D/O. DO. DO.

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10. NADEERA, AGED 30, DO. DO.

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11. SABURA, AGED 27, DO. DO.

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12. NAZEER, AGED 25 , S/O. SHARIBA, DO. DO.

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13. NAUSHAD, AGED 20, S/O. SHARIBA, DO. DO.

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*14. MUHAMMAD, S/O. KUNJANMARAKKAR, AGED 65 YEARS, RESIDING AT KAVUNGAPADATH, PUTHUPALLIPRAM KARA, THRIKKAKARA NORTH VILLAGE. (DIED).

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*IT IS RECORDED THAT 4TH RESPONDENT DIED ISSUELESS AND RESPONDENTS 1,2,3,5 &6 WHO ARE ALREADY ON THE PARTY ARRAY ARE RECORDED AS THE LEGAL HEIRS OF DECEASED 4TH REPONDENT AS PER ORDER DTD.14.8.2007 IN MEMO CF. 3039/07.

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ADDL. R15 TO R22 IMPLEADED.

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15. HALIMA MUHAMMED, AGED 60, W/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI.

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16. RAILA, AGED 43, D/O. LATE MUHAMMAD ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI.

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S.A.136/1994

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17. NASEEMA, AGED 40, D/O. LATE MUHAMMAD , ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI.

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18. NISSAR, AGED 38 , S/O. LATE MUHAMMAD, ANJIKATHU CHANGAMPUZHA NAGAR, KOONAMTHAI

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19. RASHEED, AGED 36, S/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI.

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20. AASMA, AGED 33, D/O. LATE MUHAMMAD , ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI.

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21. SALAM, GED 28, S/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI.

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22. ANSAR, AGED 24, S/O. LATE MUHAMMAD, ANJIKATHU, CHANGAMPUZHA NAGAR, KOONAMTHAI,

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THE LEGAL HEIR OF DECEASED 14TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 15 TO 22 AS PER ORDER DTD. 25.6.04 IN CMP.1978/1998.

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R1,2,3,5,&6 BY ADV. SRI.P.A.ABDUL JABBAR R7 TO R13 BY ADVS.SRI.K.K.JAYASOORIAN, SRI.P.M.KUNJIMOIDEENKUTTY, SRI.LAL K.JOSEPH, SRI.A.A.ZIYAD RAHMAN, SRI.V.R.REKESH.

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON 09/07/2010 DELIVERED THE FOLLOWING:

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tss

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P. BHAVADASAN, J.

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- - - - S.A. No. 136 of 1994

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- - - - Dated this the 9th day of July, 2010.

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JUDGMENT

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The plaintiffs in O.S. 222 of 1981 before the Munsiff's Court, Ernakulam are the appellants.

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Late Kunjan Marakkar had eight children. They are Muhammed, the first plaintiff, Veerankutty, the second plaintiff, Kochupathu, the third plaintiff, Sareeba, the fourth plaintiff, Aliyumma, the fifth plaintiff and Hameed, who is no more and his legal heirs are plaintiffs 6 to 10. He had a daughter by name Nabeesa, who is shown as the first defendant. The second defendant is her husband and defendants 3 to 6 are their children. He has another son Kadir Pillai, who is no more and his legal heirs are defendants 7 to 13.

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The suit is one for partition. The plaint

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schedule consists of two items, namely 1.16 acres in Sy. Nos.651/8A and 651/8B of Puthuppally Village and item

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S.A. 136/1994.

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No.2, which consists of 13 ½ cents in Sy. No.712/5 of the same Village.

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Items 1 and 2 of the plaint schedule and another extent of 69 ½ cents comprised in various survey numbers originally belonged to Kunjan Marakkar, who is the predecessor in interest of Kadir Pillai, first defendant and the plaintiffs. After the death of Kunjan Marakkar, according to the plaintiffs, his rights devolved on the legal heirs, who were since then in joint possession. The legal heirs decided that for the purpose of proper management, all the properties be entrusted to Kadir Pillai. Kadir Pillai possessed and managed the properties on behalf of the coowners and he used to give them their due share of income. As regards 69 ½ cents in Sy. No.65/2, the second plaintiff and the husband of the sixth plaintiff assigned their share to the first plaintiff. So that he had 6/14 shares. Muhammed, another son of late Kunjan Marakkar had filed O.S. 513 of 1964 for partition. Plaintiffs 3, 5 and the first defendant relinquished their shares in favour of the first

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S.A. 136/1994. 3

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plaintiff. Since then, the entire 69 ½ cents has become the property of the first plaintiff and that is not included the suit. He is the absolute owner thereof. The other two items were in the possession and management of Kadir Pillai and on his death his legal heirs are managing the same on behalf of all the co-sharers. Muhammed, who has filed O.S. 513 of 1964 had also relinquished his rights over all the three items in favour of the first plaintiff and thereafter 69 ½ cents has become the absolute property of the first plaintiff. One Abdul Rahiman had claimed right over plaint item No.2 and laid O.S. 97 of 1971making defendants 1 and 2 and Kadir Pillai as the defendants. That was dismissed. Thereafter the first and second defendant colluded with Abdul Rahiman and pulled down the hut in the property and put up a pucca building. Kadir Pillai instituted O.S. 267 of 1979 for injunction against defendants 1 and 2. During the pendency of the suit, Kadir Pillai died and his legal heirs came on the party array. It seems that the matter was comprised and a deed was executed between the legal heirs of Kadir Pillai

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S.A. 136/1994. 4

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and defendants 1 and 2 without the junction of the other cosharers. That transaction is not valid and binding on the plaintiffs. The first and second defendant obtained kudikidappu right over 2^nd item of property in collusion with defendants 7 to 13. They are not entitled to kudikidappu rights. Kadir Pillai could not have granted any permission to either the first defendant or to the second defendant to reside in the property and that in fact he has not given any consent also. Even if Kadir Pillai has given any such permission, that is not binding on the plaintiffs. On the basis of these allegations the suit was laid for partition, whereby the plaintiffs claimed 8/14 shares.

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First defendant and defendants 2 to 6 filed written statements almost on the similar lines. They contended that they are not necessary parties to the suit and the suit is bad for mis-joinder as well as non-joinder of parties. They disputed the title of the plaintiffs. Item No.2 as in the exclusive possession of Kadir Pillai and since defendants 1 and 2 did not have any abode of their own,

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S.A. 136/1994.

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they were allowed to reside and they have put up a building and are residing therein. The plaintiffs were fully aware of O.S. 267 of 1979 filed by Kadir Pillai and what transpired thereafter. These defendants have purchased the kudikidapu rights by approaching the Land Tribunal concerned. The balance 3 ½ cents had been purchased by the first defendant as per document No.6077 of 1980. Based on these contentions, they prayed for a dismissal of the suit.

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Defendants 7 to 13 filed separate written statements. They are the wife and children of late Kadir

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Pillai. They disputed the claim of lease urged in the plaint of the year 1116 M.E. The alleged entrustment of property by the co-owners for management and administration to Kadir Pillai and the claim of sharing of income were disputed. The first plaintiff had sold his rights over the property to Kadir Pillai on 21.4.1960. Thereafter Kadir Pillai became the absolute owner. It was pointed out by them that after the death of Kunju Marakkar the properties were jointly held by

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S.A. 136/1994. 6

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the first plaintiff and Kadir Pillai only and the other sharers had no manner of rights over the properties. It was thereafter that the first plaintiff had executed the assignment deed in favour of Kadir Pillai. 49 cents was assigned to the seventh defendant by Kadir Pillai. A building has been put up in that property and defendants 7 to 13 are residing therein. They contended that even if anybody else had any manner of right over the property, that was lost by adverse possession and limitation. In O.S. 97 of 1971 it was found that the properties belonged to Kadir Pillai. On the basis of these contentions, they pointed that the plaintiffs are not entitled to any reliefs and sought for a dismissal of the suit.

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The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.W.1 and the documents marked as Exts.A1 to A15 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B24 marked. On an appreciation of the materials before it, the court below found that the

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S.A. 136/1994.

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properties are partible and therefore passed a preliminary decree, which reads as follows:

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“In the result, a preliminary decree is passed allotting 1^st plaintiff 6/14 share in plaint item No.1, 3rd plaintiff, 4^th plaintiff, 5^th plaintiff and 1^st defendant each 1/14 share in item No.1 and defendant 7 to 13 together allotted 4/14 share in item No.1 over 3.850 cents of plaint item No.2 first plaintiff is allotted 4/14 share. 2^nd plaintiff is allotted 2/14 share, 3^rd plaintiff, 4^th plaintiff, 5^th plaintiff each 1/14 share and 1^st defendant 3/14. Plaintiffs are entitled to get proportionate mesne profit. Plaintiffs are allowed to apply for passing a final decree within 3 months from this date where in a commissioner will be appointed to divide, demarcate the property by metes and bounds and allot the shares to parties in accordance with the preliminary decree. The Commissioner will also ascertain the mesne profits from the property. The quantum of mesne profits will be determined in the final decree. Suit is partly decreed without costs.”

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Defendants 7 to 13 carried the matter in appeal

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as A.S.110 of 1987 and the aggrieved plaintiffs carried the

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S.A. 136/1994. 8

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matter in appeal as A.S. 111 of 1987. The appellate court on an independent evaluation of the evidence in the case found the case set up by defendants 7 to 3 to be true and accordingly allowed their appeal. The other appeal was dismissed. Thus the properties became non-partible.

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Aggrieved by the appellate court judgment and decree, the plaintiffs have come up in appeal. During the pendency of the appeal the fourth defendant died and since his legal heirs are already on the party array, the same was recorded. The 14^th defendant also died and his legal heirs were brought on the party array as respondents 15 to 22.

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In the appeal before lower court, while defendants 7 to 13 had attacked the trial court judgment, the appeal by the plaintiffs was against the rejection of the claim of partition of 10 cents in item No.2, wherein defendants 1 and 2 had obtained kudikidappu rights. The appellate court held that as regards item No.1, the claim of the plaintiffs have been barred by adverse possession and limitation.

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S.A. 136/1994.

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The following substantial questions of law are seen raised in this Second Appeal:

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“A) Is the court below justified in entering findings without assigning reasons and discussing the facts evidence and the law on the points. Being fact finding court whether the court below can decide the dispute in such arbitrary manner.

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B) Whether Ext.B1 document takes away the rights of 1^st plaintiff which he obtained as per Ext.A2 and A7. When there is no mention about Ext.A2in Ext.B1 document and when Ext.A7 is much after Ext.B1.

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C) Whether Ext.B1 will extinguish the co-ownership rights of other co-owners who are not parties to the same and whether Ext.B1 will give absolute right to Kadir Pillai.

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D) Whether the respondents 7 to 13, who claims title by release, can claim absolute right by adverse possession and ouster which was not claimed by their predecessor Kadir Pillai.

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E) Whether the plea of oral transfer which is not pleaded by respondents 7 to 13 in their written statement and in respect of which no

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S.A. 136/1994.

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issue was framed before court below and no evidence was adduced can be agitated for the first time before the appellate court.

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F) When one of the co-owners transfers his rights over the co-ownership property can that affect and bind the rights of other co-owners. Whether such transfer can be ignored by the other co-owners in getting their shares.

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G) Whether a permission to erect homestead given by one of the co-owners over the joint property bind other co-owners and whether the other co-owners can ignore such actions in getting their share.

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H) Whether the patta obtained without making all the co-owners parties can bind them and whether that can be avoided by the co-owners who were not parties to the proceeding and who have not given permission to erect a homestead.”

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Learned counsel appearing for the appellants raised three points for consideration, 1) the finding that the claim of the plaintiffs is lost by adverse possession and limitation is wrong, 2) property originally belonged to Kunjan Marakkar, who is the predecessor in interest of the plaintiffs

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S.A. 136/1994.

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and defendants and on his death therefore the property devolved on his legal heirs, 3) purchase certificate obtained by defendants 1 and 2 are not binding on the plaintiffs.

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Learned counsel pointed out that item Nos. 1 and 2 admittedly were acquired by Kunjan Marakker on lease. After the death of Kunjan Marakkar therefore naturally the legal heirs, who are the plaintiffs and defendant No.1 and Kadir Pillai, the predecessor in interest of defendants 7 to 13, succeed to the property. In fact Kunjan Marakkar acquired item Nos. 1 and 2, and 69 ½ cents in Sy. No. 651/2 and ie., 1 acre 16 cents in Sy. No.651/8A and 8B. There is nothing to show that after the death of Kunjan Marakkar, the properties were exclusively possessed and enjoyed by the first plaintiff and Kadir Pillai. The assignment deed said to have been executed by the first plaintiff in favour of Kadir Pillai can at best affect the rights of the first plaintiff and can have no value as regards the other plaintiffs are concerned. The court below was wrong in law in having accepted the plea of ouster put

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S.A. 136/1994.

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forward by defendants 7 to 13. A co-owner in possession is deemed to be in possession on behalf of all the co-owners. Unless it is shown by clear, convincing and cogent evidence that the other co-sharers have been expressly excluded from sharing the properties and their title had been denied, a cosharer cannot succeed on the plea of adverse possession and limitation. Then again the permission granted by Kadir Pillai to defendants 1 and 2 to occupy the land and put up building therein cannot bind the other co-owners. He is not competent to do so. Accordingly, it is contended that the decree of the lower appellate court below is bad in law. Learned counsel in support of his case relied on the following decisions:

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i) 2005(1) K.L.T. 864 ii) (2006) 7 SCC 570 iii) (2007) 6 SCC 59 iv) 2005 (4) K.L.T. 653 v) (1995) 2 SCC 543 vi) AIR 1981 SC 77

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S.A. 136/1994.

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Per contra, learned counsel appearing for the contesting respondents pointed out that the court below has addressed itself to the questions involved in the proper perspective and has come to the correct conclusion. The court below has found that after the death of Kunhi Marakkar, the first plaintiff and late Kadir Pillai came into possession of the suit properties independently and others had no right in the properties. They held the properties as their own. Later between them, 69 ½ cents was given to the first plaintiff and the other item of property, 1.16 acres was given to Kadir Pillai. Kadir Pillai independently acquired 13 ½ cents. It is true, according to learned counsel, that the first plaintiff has got release deed from other legal heirs of Kunhi Marakkar. But that is only a clever ploy adopted by the first plaintiff to deny the legitimate rights of Kadir Pillai over the properties given to him. Those persons who have executed release deed in favour of the first plaintiff infact have no manner of right over the properties. The recitals in the release deed itself will reveal this fact. Even the first

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S.A. 136/1994.

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plaintiff in various litigations had clearly asserted that the properties belonged exclusively to him and late Kadir Pillai and that no other person person had any manner of right over the same. It comes with little grace from him now to say that others also have rights over the suit properties. It is clear that after having made his possession safe, the first plaintiff had instigated others, who never had any right in the property and who never assailed the rights exercised by the first plaintiff and late Kadir Pillai to file the present suit. It is clear that the intention of the first plaintiff is to make gain for himself. It is significant to notice that only the first plaintiff who has managed to secure to himself with 69 ½ cents has given evidence in the case. None of the other sharers have come forward to give evidence. It must be noticed that the suit was laid 32 years after the death of Kunjan Marakkar and also after the death of Kadir Pillai. The suit lacks bonafides. To constitute ouster of other co-sharers there need not be any belligerent or violent conduct on the part of the person in possession. It is sufficient to show that

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S.A. 136/1994.

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the said co-sharer had treated the property as exclusively belonging to him and he had not shared any income with other co-sharers and that he has asserted the hostile title as against them. Such evidence is available in the case on hand and it was on that basis the court below non-suited the plaintiffs. Learned counsel therefore contended that no grounds are made out to interfere with the judgment and decree of the lower appellate court.

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After hearing elaborately both sides, it is felt that there is much force in the contention raised by the learned counsel for the respondents in this appeal. The reasons follow.

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It is not in dispute that the property originally belonged to Kunjan Marakkar. He held them on leasehold right. He died in 1949. Normally as per law, the leasehold right then devolve on the children of Kunju Marakkar. But according to defendants 7 to 13 after the death of Kunju Marakkar, the properties were exclusively possessed and enjoyed by the first plaintiff and Kadir Pillai. None of the

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S.A. 136/1994.

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other legal heirs ever asserted any right over the suit items. Thereafter there was an understanding between the first plaintiff and Kadir Pillai, whereby 69 ½ cents was given to the first plaintiff and Kadir Pillai was given the other item of property. Thereafter Kadir Pillai released his rights over 69 ½ cents in favour of the first plaintiff. In turn the first plaintiff executed a deed in favour of Kadir Pillai releasing all his rights over the property set apart to Kadir Pillai. It was therefore contended by defendants 7 to 13 that Kadir Pillai ever since the release deed in favour of the first plaintiff had been enjoying the property asserting his rights in exclusion of all the co-sharers.

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Another issue that is thrown up for consideration is regarding the competency of Kadir Pillai to give permission to defendants 1 and 2 to occupy the land for residing. They succeeded in getting kudikidappu rights over the property. Now the question is whether that is binding on the other co-owners and what exactly is the right of Kadir Pillai to grant permission.

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S.A. 136/1994.

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As already noticed that this is an accepted case that the properties originally belonged to Kunju Marakkar. The case put forward by the plaintiffs is that consequent on the death of Kunji Marakkar, the leasehold rights devolved on all the legal heirs. As far as 69 ½ cents in Sy. No.651/2 is concerned, all sharers had relinquished their rights in favour of the first plaintiff and therefore he became the absolute owner thereof. Plaintiffs' case is that as far as the suit properties are concerned, they are entitled to a share and the first plaintiff asserts that he is entitled to 8/14 share. The contention of defendants 7 to 13 had already been adverted to. It is pointed out by them that as per Ext.A1 document, the first plaintiff obtained jenm right over the properties and the recital in the said document will clearly show that the first plaintiff had accepted the fact that after the death of Kunji Marakkar the suit properties, 69 ½ cents and 1.16 acres owned by the predecessor in interest of the plaintiffs taken were in the exclusive possession and enjoyment of the first plaintiff and Kadir Pillai. It is clear

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S.A. 136/1994.

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from a reading of that document that no other legal heirs of Kunji Marakkar had any manner of right over the property. Thereafter by Ext.B1 dated 21.4.1960, the first plaintiff has assigned 1.16 acres of land in favour of Kadir Pillai. In turn, Kadir Pillai released rights over 69 ½ cents in favour of the first plaintiff. It was thereafter that Exts. A2, A5, A6, At and A8 that the first plaintiff had obtained to get release deeds from other sharers in respect of 69 ½ cents. The defendants pointed out that the mere fact that first plaintiff has cleverly chosen to obtain release deed from others does not lead to the conclusion that the suit properties were held in common.

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While things stood thus, one Abdul Rahiman filed O.S. 97 of 1971. Property involved was plaint item No.2. Late Kadir Pillai and defendants 1 and 2 were parties to the said suit. In the said suit, Kadir Pillai filed a written statement controverting the rights claimed by Abdul Rahiman. In his written statement, he traced his title through Kunju Marakkar and took the stand that he was in

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S.A. 136/1994.

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possession of the property after the death of Kunju Marakkar as agreed to by all the legal heirs. The suit was dismissed and the dismissal was confirmed in appeal. Written statement of Kadir Pillai in the said suit is Ext.B4 and Ext.B11 is the judgment in OS. 97 of 1971. Ext.B11 refers to various other litigations also.

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Plaintiffs laid claim on the basis that while the

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case of 69 ½ cents in respect of which both jenm right and kudikidappu right vested with the first plaintiff in the case of the suit property Kadir Pillai has got assignment of the rights of the first first plaintiff alone and the rights of other plaintiffs remained with them.

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Two main contentions are seen raised by defendants 7 to 13, they are 1) consequent on the death of Kunji Marakkar, the rights which he enjoyed over the suit property came to vests with the first plaintiff and Kadir Pillai. 2) After obtaining jenm right, first plaintiff assigned his rights over the suit properties in favour of Kadir Pillai. In turn Kadir Pillai assigned his rights over 69 ½ cents . It is

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S.A. 136/1994.

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significant to notice that in Ext.A1 document by which jenm right was acquired by the first plaintiff, there is clear recital to the effect that consequent on the death of Kunji Marakkar the entire properties held on leasehold by the first plaintiff and late Kadir Pillai.

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It is important to notice that Muhammed, S/o. Kunji Marakkar in his second wife had instituted O.S. 513 of 1964 for partition. He had made all the legal heirs of Kunji Marakkar has parties to the suit. First plaintiff was the first defendant and Kadir Pillai was the second defendant. They alone contested the suit. Others remained ex parte. First plaintiff filed Ext.B3 written statement. Kadir Pillai filed Ext. B2 written statement. There, both had asserted that after the death of Kunji Marakkar items of properties taken on lease by Kunji Marakkar came to vest with the first plaintiff and laid Kadir Pillai, or in other words 69 ½ cents Sy. No. 652/2 and one acre and 16 cents in the other survey numbers came into the exclusive possession of the first plaintiff and Kadir Pillai. It is seen from the records that the

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S.A. 136/1994. 21

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said suit was later compromised. On this basis it is contended by defendants 7 to 13 that after the death of Kunji Marakkar first plaintiff and late Kadir Pillai alone owned, possessed and enjoyed both the items. It is pointed out by defendants 3 to 7 that at no point of time any of the sharers had demanded their share of income nor was any share of income paid to them. The court below has accepted that going by Exts. B1, B2 and B3 there is a clear assertion by the first plaintiff and Kadir Pillai that the suit items along with 69 ½ cents belonged exclusively to them. One must notice here that Exts.B2 and B3 written statements were filed in a suit to which all other heirs of Kunji Marakkar were parties. Therefore it must be presumed that the other sharers knew about the contention taken by the first plaintiff and late Kadir Pillai. It needs to be noticed at this point of time that the present suit is laid in 1981.

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Once it is accepted that Kunji Marakkar was

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the owner of the property, normally on his death all his heirs succeeded to the property as tenants in common. Mere non-

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S.A. 136/1994. 22

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participation in management, non-receipt of income by cosharers or non-payment by the co-sharer in possession may not by themselves be sufficient to constitute ouster. A coowner is deemed to be in possession on behalf of all the sharers. The burden is heavy on the co-sharer to show that there was assertion of title hostile to the co-owner and ouster is against the other co-sharers. May be that they have not been given their share of properties, or mere possession and enjoyment are not by itself sufficient.

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According to learned counsel appearing for the appellants in the case on hand there is no proof of ouster and in fact the evidence is to the contrary. Therefore it is contended that the lower appellate court ought not to have interfered with the decree of the trial court.

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Learned counsel appearing for the respondents did not dispute the proposition of law. On the other hand he contended that there is sufficient evidence to show that after the death of Kunji Marakkar, the first plaintiff and late Kadir Pillai came into exclusive possession and

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S.A. 136/1994.

¶153

¶154

enjoyment of the suit properties and none of the other cosharers ever had any manner of right over the same. According to learned counsel for the respondents from the date of Ext.A1 assignment in favour of the first plaintiff of the jenm rights, even according to the first plaintiff they have been in exclusive possession and enjoyment in respect of 1.16 acres and 69 ½ cents. Learned counsel also pointed out that in the suit by Muhammed all the legal heirs were parties. While the first plaintiff and late Kadir Pillai alone contested and others chose to remain ex-parte. It was pointed out that in the written statement filed by defendants 1 and 2 in the said suit, they had asserted rights in themselves and the other co-sharers should be deemed to have knowledge about the same. According to learned counsel, it is not the law that there can never be a claim of adverse possession against a co-owner. Learned counsel accepted that a high degree of proof is required. But learned counsel invited the attention of this court to the various litigations between the parties, the conduct of the parties, to

¶155

S.A. 136/1994.

¶156

¶157

emphasis that there is nothing to show that after the death of Kunji Marakkar the suit properties were enjoyed in common by any of the sharers at any point of time and the co-sharers had demanded profits or share of profit was paid or asserted any manner of right over the suit properties. Accordingly, learned counsel pointed out that no interference is called for with the judgment and decree of the lower appellate court. In support of his contentions, learned counsel relied on the decisions reported in

¶158

i) 48 I.C. 692 ii) AIR 1926 Calcutta 589 iii) AIR 1972 Madras 467 iv) AIR 1977 Madhya Pradesh 34 v) AIR 1936 Nagpore 232 vi) AIR 1957 SC 314 vii) 1969 K.L.T. 121 viii) AIR 1977 Kerala 241 ix) AIR 1925 Lahore 125 x) AIR 1950 PC 344

¶159

Before going further, it is useful to refer what

¶160

is meant by adverse possession. The classic requirements

¶161

S.A. 136/1994.

¶162

¶163

of adverse possession are that possession must be nec vi nec clan nec precario , that is possession must be adequate in continuity, publicity and in extent. There must be an animus to hold it adversely to the true holder. The claim of adverse possession involves a claim in derogation of the rights of the real owner or in other words one who claims adverse possession admits that title belongs to another person. It actually means that possession of a person holding the land on his own behalf or on behalf of some person other than the real owner having a right to immediate possession. Adverse possession is a possession that is hostile, under a claim or colour of title, actual, open, notorious, exclusive and continuous.

¶164

As regards the co-owners are concerned, the law is that there can be no adverse possession by a coowner, unless there has been denial of title and ouster to the knowledge of others. Normally, the rule is that possession of co-owner is possession on behalf of all the

¶165

S.A. 136/1994.

¶166

¶167

other co-owners. Now one may refer to the decisions cited by both sides.

¶168

In the decision reported in George Thomas v. Geondy Joseph (2005(1)K.L.T. 864) it was held as follows:

¶169

“A mere possession in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title is not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea. Concrete proof of open, hostile and continuous possession is required in order to substantiate a claim of perfection of title by adverse possession. Verifiable details of the nature of the occupation would be essential and mere assertions would not be adequate substitute.”

¶170

In the decision reported in T. Anjanappa v. Somalingappa ((2006) 7 SCC 570), it was held as follows:

¶171

“The concept of adverse possession contemplates a hostile possession i.e. a

¶172

S.A. 136/1994.

¶173

¶174

possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.

¶175

Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:

¶176

“24. It is a mater of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that

¶177

S.A. 136/1994.

¶178

¶179

since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners.”

¶180

Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:

¶181

“14.......Adverse possession means [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his

¶182

S.A. 136/1994.

¶183

¶184

title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed......

¶185

15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all. (See Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 554, paras 14-15).”

¶186

An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner (that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse

¶187

S.A. 136/1994.

¶188

¶189

possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar) Adverse possession is of two kinds, according as it was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation.

¶190

S.A. 136/1994.

¶191

¶192

It is well recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.”

¶193

In the decision reported in P.T. Munichikkanna Reddy v. Revamma ((2007) 6 SCC 59), it was held as follows:

¶194

“The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the

¶195

S.A. 136/1994.

¶196

¶197

Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms:

¶198

“Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.”

¶199

The aforementioned principle has been reiterated by this Court in Saroop Singh v. Banto stating:

¶200

“29. In terms of Article 65 the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse. (See Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak).

¶201

S.A. 136/1994.

¶202

¶203

30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period of prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus (See Mohd.Mohd. ali v. Jagadish Kalita, SCC para 21.)

¶204

In Mohammadbhai Kasambhai Sheikh v. Abdulla Kasambhai Sheikh this court held:

¶205

“But as has been held in Mahomedally Tyebally v. Safiabai the heirs of Mohammedans (which the parties before us are) succeed to the estate in specific shares as tenants-in-common and a suit by an heir for his/her share was governed, as regards immovable property, by Article 144 of the Limitation Act, 1908. Article 144 of the Limitation Act, 1908 has been materially reenacted as Article 65 of the Limitation Act, 1963 and provides that the suit for possession of immovable property or any interest therein based on title must be filed within a period of 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Therefore, unless the defendant raises the defence

¶206

S.A. 136/1994.

¶207

¶208

of adverse possession to a claim for a share by an heir to ancestral property, he cannot also raise an issue relating to the limitation of the plaintiff's claim.”

¶209

In the decision reported in Annasaheb Bapusaheb Patil v. Balwant ((1995) 2 SCC 543), it was held as follows:

¶210

“Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was

¶211

S.A. 136/1994.

¶212

¶213

hostile to the real owner and amounted to a denial of his title to the property claimed.

¶214

The defendant, therefore, must plead and prove that after the re-grant, he asserted his own exclusive right, title and interest to the plaint schedule property to the knowledge of the plaintiff and the latter acquiesced to such a hostile exercise of the right and allowed the defendant to remain in continuous possession and enjoyment of the property in assertion of that hostile title during the entire statutory period of 12 years without any let and hindrance and the plaintiff merely stood thereby.”

¶215

In the decision reported in Karbalai Begum

¶216

v. Mohammed Sayeed (AIR 1981 SC 77) it was held as follows:

¶217

“It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. Indeed even if this fact is admitted, then the legal position would be that the cosharers in possession would become constructive trustees on behalf of the co-sharer who is not in

¶218

S.A. 136/1994.

¶219

¶220

possession and the right of such co-sharer would be deemed to be protected by the trustees.”

¶221

Now one may refer to the decisions cited by

¶222

the learned counsel for the respondents. In the decision reported in Chand Bibi v. Lal Mohamed (1918 Vol.48 I.C. 692), it was held as follows:

¶223

“That the possession of the brother was adverse to the plaintiff, even though it was not shown that there was any demand made by the plaintiff which was refused by the brother.”

¶224

In the decision reported in Siteswar Roy v.

¶225

Tepua Barman (AIR 1926 Calcutta 589) the facts showed that for 30 years the other co-sharers did not assert any manner of right over the suit property. In that context it was held as follows:

¶226

“That they cannot be allowed to contend that the co sharers-defendants were in possession on behalf of the plaintiffs.”

¶227

In the decision reported in Ibramsa v. Sk. Meerasa (AIR 1972 Madras 467) a distinction was drawn

¶228

S.A. 136/1994.

¶229

¶230

between adverse possession as between strangers and coowners. In that decision it was held as follows:

¶231

“There is a distinction between adverse possession as between strangers and ouster and exclusion of co-owners. In the case of adverse possession as against strangers, it is sufficient that adverse possession is overt and without any attempt at concealment. It is not necessary that adverse possession should be brought home to the knowledge of the owner. When the adverse possession is open, visible and notorious, if the owner remains ignorant and indifferent he cannot complain. In the case of ouster of a co-owner the position is different. To constitute ouster law requires something than mere exclusive possession and exclusive receipt of income. There must also be an ouster a hostile, open denial and an open repudiation of that co-owner;s right to the latter's knowledge. But this does not mean that the co-owner who has been ousted our excluded should be expressly informed as such by the other co-owner. If other circumstances concur the courts can legitimately infer from exclusive possession for a considerable length of time, that

¶232

S.A. 136/1994. 38

¶233

the other co-owner has been excluded to his knowledge. The theory of lost grant is applicable to support long continued possession for considerable length of time. If the co-owner does not assert his right for a considerable length of time, the inactive co-owner must take the consequences for long delay in bringing a suit to establish his right, which delay has prejudiced the other side and occasioned loss of evidence by lapse of time.”

¶234

In the decision reported in P. Lakshmi Reddy v. L. Lakshmi Reddy (AIR 1957 SC 314) it was held as follows:

¶235

“But it is well settled that in order to establish adverse possession of one-co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the nonpossessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the coheirs. When one co-heir is found to be in possession of the properties, it is presumed to be

¶236

S.A. 136/1994.

¶237

¶238

one the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs title. It is a settled rule of law that as between co-heirs thee must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.

¶239

The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.

¶240

A Receiver is an officer of Court and is not a particular agent of any party to the suit, notwithstanding that in law his possession is ultimately treated as possession of the successful party on the termination of the suit. To treat such Receiver as plaintiff's agent for the purpose of initiating adverse possession by the plaintiff would be to impute wrong doing totheCourt and its officers. The doctrine of Receiver's possession being that of the successful party cannot be pushed to the extent of enabling a person who was initially out of possession to claim the tacking

¶241

S.A. 136/1994.

¶242

¶243

on of Receiver's possession to his subsequent adverse possession.”

¶244

In the decision in Kunhamina Umma v.

¶245

Special Tahsildar (AIR 1977 Kerala 41) it was held as follows:

¶246

“The principle that the sole possession and enjoyment of the profits of the property will not constitute ouster as regards the other co-owners can hardly apply where possession has continued for a considerable period of time exclusively with one co-owner and prima facie to the exclusion of other or others.

¶247

If the one co-owner takes possession and continues in possession for a long time enjoying the income of the property without sharing it with other co-owner it is a strong circumstance indicative of, or from which an inference can be drawn, that there was ouster of the co-owners not in possession; and if other circumstances also exist in support of this, courts will be justified in inferring ouster or exclusion.”

¶248

It is unnecessary to refer to all the decisions cited by the learned counsel for the respondents.

¶249

¶250

S.A. 136/1994.

¶251

The principle is very clear. Normally, the courts are very shy to accept the claim of adverse possession by one co-owner against another co-owner. A high degree of proof is required regarding ouster of other coowners. Merely because there is no participation of management or the sharing of income by itself are not sufficient to constitute ouster. There must be evidence of clear indication on the part of the co-owner in possession asserting his title and holding the property adverse to the interest of the other co-owners and the other co-owners remain passive.

¶252

Keeping the above principles in mind, an attempt shall now be made to see whether the plea of adverse possession and limitation in the case on hand is established.

¶253

Ext. A1 is the document by which the first plaintiff obtained the jenm right over the property. Relevant recital reads as follows:

¶254

S.A. 136/1994.

¶255

¶256

“........ മ�പത�ഴ�പറ അഞ�ടങഴ� ന�ല �പ�ടവ�� എട��വ�ലയ�ല ഒര � ക�ല ഏ�ക�യ നപര �ന�ള ക�ഴ"#യ�മ�യ�� പ�ട� ത�രവ�നടഴ�ത�പ�ട�ച��ടന� തപ�രതവ ട� അഹമത �ക�ഞ�മരക�ര� എനയ�ള �നട പ�ലക�ല� പ�നത�ടരച വഴ� ഇതപ�ള ത�ങള�നടയ�� ത�ങള�നട അ��ജന ക�തര�പ�ള എനയ�ള �നടയ�� കകവശമ�ര�ക �നത�� ത2ഹണങള ന#യ"ത� �ഭവ�ച� തപ�ര �നത�മ�യ ത�നഴ പട�കയ�ല വ�വര�ക�ന ഒതരകര എ�"പ�ഞര ന5ന� ഭ7മ� നവനറവകകതള�ട�ക7നട എനന പ�ത�വ" ബ�വ എന� വ�ള�ച� വര�ന അല�യ�ര�ക�ഞ� അവരകള�നട പ�ലക�ല� ഞ�ന മ�തലതപരക" അവക�ശനപടത�ന��ടരന" ........”

¶257

According to learned counsel for the

¶258

appellant, the word പ�നത�ടര##വഴ� (in succession) indicates that the acquisition made was for and on behalf of the coowners. It is not possible to say so. The word പ�നത�ടര##വഴ� only shows continuity of possession. That is clear from the subsequent words used in the recital. On a reading of the document as a whole it would be very evident that the claim was that the property was outstanding with the first plaintiff and late Kadir Pillai. This clearly shows that after the death of Kunji Marakkar, the first plaintiff and late Kadir

¶259

S.A. 136/1994. 43

¶260

Pillai had asserted their exclusive right, possession and enjoyment over the suit properties. Next is the suit by Abdul Rahiman regarding item No.2 to the plaint. There, late Kadir Pillai and defendants 1 and 2 in the present case were made as defendants. It is true that Kadir Pillai said in the written statement that possession regarding item No.2 was as agreed to by all the sharers. But then one has to notice the suit filed by Muhammed, the son of Kunju Marakkar through his second wife, which was a suit for partition. It is here that Exts.B2 and B3 assumes significance. They are the written statements of the first plaintiff and late Kadir Pillai. In the said suit all the legal heirs of Kunju Marakkar were on the party array, but except defendants 1 and 2, others chose to remain ex-parte. In that suit, the written statement filed by Kadir Pillai and the first plaintiff in no uncertain terms declared that they were in possession of the property involved in the suit to the exclusion of all others. This is followed by the mutual release of rights by late Kadir Pillai and the first plaintiff.

¶261

S.A. 136/1994.

¶262

¶263

One may now have a perusal of the release obtained by the first plaintiff. He now asserts that all the legal heirs of Kunju Marakkar entitled to the suit properties. In respect of 69 ½ cents he was clever enough to get release deed executed by late Kadir Pillai and then stealthily obtained release deeds from other co-sharers. Exts.A5, A6, A7, and A8 are termed as Ozhimuri (release deeds). A reading of those documents will show that there was no particular assertion of rights by those assignors and they only say that their nominal interest over the properties were being released in favour of the first plaintiff. If as a matter of fact those co-sharers were asserting their rights, the word 'nominal' would not have been used. If they know that they had definite rights over the suit property and if they were asserting their rights, they would have taken care in so many words the actual share and right that were being released.

¶264

It is true that in Ext.A5 document, the first plaintiff was clever enough to mention Kunju Marakkar's

¶265

S.A. 136/1994. 45

¶266

അവക�ശ�കള (legal heirs of Kunju Marakkar). That too was certainly with the oblique motive. There is absolutely nothing on record to show that any of the legal heirs of Kunju Marakkar except the first plaintiff had ever asserted any rights over the suit properties. It is also significant to note that none of them have come forward to give evidence in the case. The first plaintiff was careful enough to include the recital in the document executed between him and Kadir Pillai that after the death of Kunju Marakkar they held the properties to the exclusion of all other co-owners and after doing so, he then obtained release deed from other cosharers.

¶267

There is nothing to show that after the release deed in his favour, any of the co-sharers had ever asserted any right over the portion of the property held by Kadir Pillai. As per Ext.B1, late Kadir Pillai transferred 49 cents to his wife. They put up a building therein and have been residing in the property for the last 25 years. There can be

¶268

S.A. 136/1994.

¶269

¶270

no doubt that Kadir Pillai was asserting rights in derogation or the rights of the other co-owners.

¶271

As rightly pointed out by the learned counsel appearing for the respondents Sri. Jayasurya it is not necessary to resort to belligerent acts against other coowners to assert hostile possession. If one co-owner exclusively possesses the properties and enjoys it for many years, and there is no evidence of sharing of profits or income and there is no conduct from the other side of any indication or assertion of their rights, the necessary animus can be presumed and the possession becomes adverse. This principle is followed in some of the decisions cited by the learned counsel for the respondents. It is true that the burden is on the person who asserts adverse possession and limitation. More so, in the case of a co-owner. But the facts revealed in this case would show that right from the day of execution of Ext. A1, that is 28.6.1957, at any rate from the day on which late Kadir Pillai and the first plaintiff filed written statements in O.S. 513 of 1964 they had declared

¶272

S.A. 136/1994.

¶273

¶274

that the suit properties exclusively belonged to them. It is evident that the attempt on the part of the first plaintiff is to divest defendants 7 to 13 of the properties that late Kadir Pillai possessed and enjoyed. It is significant to notice that Kadir Pillai died in 1980 and the suit is filed in 1981. One cannot forget to notice that Kunju Marakkar died in 1949 and the suit had been brought 32 years thereafter. One may notice that all the other co-sharers except the first plaintiff and late Kadir Pillai had not asserted any manner of right over the suit properties. It is very clear that the first plaintiff was waiting for Kadir Pillai to leave the world to institute the suit. It is unfortunate that the first plaintiff's attempt is to deprive the widow and children of Kadir Pillai of their properties. This is fortified by the fact that none of the legal heirs of Kunju Marakkar had ever shown any interest in the suit properties or at any point of time shared the income from the properties. There is also nothing to show that they had asserted any manner of right over the suit properties. In the suit also, at the risk of repetition, they have not come

¶275

S.A. 136/1994.

¶276

¶277

forward to give evidence. In the suit, the first plaintiff who had already acquired 69 ½ cents is now trying to deprive the legal heirs of Kadir Pillai of the properties, which legitimately belong to them.

¶278

Further, the conduct of the first plaintiff and the other plaintiffs are such that they had at no point of time asserted any manner of right over the suit properties. Passive conduct on the part of the other legal heirs, if Kadir Pillai treated the properties as his own, it cannot be found fault with. The silence on the part of the other co-sharers constituted a position which made Kadir Pillai to believe that they are not asserting any manner of right over the suit properties. Kadir Pillai and his legal heirs are entitled to treat the silence or inaction on the part of other co-sharers leading to the belief that they were claiming no right over the suit properties. Where a person having title, right or claim to the properties perceives that another person is innocently and in ignorance, conducting himself with reference to the property in a manner inconsistent with such

¶279

S.A. 136/1994.

¶280

¶281

title, right or claim, it is the duty of the former to undeceive the other party forthwith; if he omits to do so, and if all the other conditions of a valid estoppel are satisfied, he is precluded from exercising or asserting his right or title or claim as against such other party on any subsequent occasion.

¶282

It is after 32 long years that the suit has been brought. From 1949 onwards it appears that the first plaintiff and late Kadir Pillai alone were enjoying the properties and there is nothing to indicate that there is any sharing of income or profits from the properties. All this while the other legal heirs stood by and watched. Merely because unlike in the case of first plaintiff, late Kadir Pillai did not take release deeds from other shares does not mean that the other co-sharers had any manner of rights over the properties. The entire evidence will have to be appreciated keeping in mind the circumstances and the conduct of the parties. Equitable principle may have to be applied. If strict letter of law leads to gross injustice, the courts standing

¶283

S.A. 136/1994.

¶284

¶285

within the frontiers of law are competent to mould the reliefs so as to redress the grievances of the really aggrieved person. Viewed from this angle, the findings of the lower appellate courts are fully justified. The lower appellate court was correct in holding that the properties belonged to late Kadir Pillai exclusively. The result is that this appeal is without merits and it is liable to be dismissed. I do so.

¶286

However, there will be no order as to costs.

¶287

P. BHAVADASAN, JUDGE

¶288

sb.

Veerankutty v. Nabeeesa

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Veerankutty v. Nabeeesa

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