Dismissed

Devaki v. Changaru @

Kerala HC3 Jan 2017RSA/1294/2004

Case brief

AI extract

What is this about?

This court dismissed a regular second appeal against findings that the original suit for recovery of immovable property was barred by limitation. The court held that the plaintiffs' cause of action accrued when defendants' possession became adverse after the plaintiffs attained majority in 1970 and 1972, making the 1996 suit time-barred.

What did the court decide?

Regular Second Appeal dismissed; findings of lower appellate court maintaining limitation bar affirmed.

Devaki Vs Changaru @ — Partition | Kerala HC (2017)

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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 K.HARILAL

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TUESDAY, THE 3RD DAY OF JANUARY 2017/13TH POUSHA, 1938

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RSA.NO. 1294 OF 2004 (D)

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AGAINST THE JUDGMENT AND DECREE DATED 31.03.2004 IN AS 2/1999 OF THE SUB COURT, MANJERI

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AGAINST THE JUDGMENT AND DECREE DATED 08.03.1999 IN OS 219/1996 OF THE MUNSIFF COURT, MANJERI

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NAME AND ADDRESS OF THE APPELLANTS/RESPONDENTS/PLAINTIFFS:

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1. DEVAKI, D/O CHERIYIL RAMAN, NILAMBUR AMSOM DESOM, CHANDAKUNNU P.O., NILAMBUR TALUK.

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2. PADMAVATHI, W/O. SIVASANKARAN, NILAMBUR AMSOM DESOM, CHANDAKUNNU P.O., NILAMBUR TALUK.

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BY ADV. SRI.M.A.ABDUL HAKHIM

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NAME AND ADDRESS OF THE RESPONDENTS/APPELLANTS/DEFENDANTS:

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1. CHANGARU ALIAS APPUKUTTAN, S/O. KUTTIPULIYAN VELUKUTTY, NILAMBUR AMSOM DESOM, CHANDAKUNNU P.O., NILAMBUR TALUK.

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2. JANAKI, W/O. CHANGARU ALIAS APPUKUTTAN, NILAMBUR AMSOM DESOM, CHANDAKUNNU P.O., NILAMBUR TALUK.

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BY ADVS. SRI.JAYKAR.K.S. SMT.M.R.MINI SMT.MEENA.A. SMT.PREETHY KARUNAKARAN SRI.R.RAJESH KORMATH SRI.V.S.ROBIN SMT.SANJANA R.NAIR

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DST

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K. HARILAL, J.

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= = = = = = = = = = = = = = = = = = = = = R.S.A. No.1294 of 2004

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- - - - - - -- - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of January,2017

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J U D G M E N T

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The appellants are the plaintiffs in O.S. No.219/1996 on the files of the Munsiff's Court,

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Manjeri, as well as the respondents in A.S. No.2/1999 on the files of the Sub Court, Manjeri. The aforesaid Original Suit was one for recovery of plaint schedule property on the strength of title. According to the plaintiffs, the plaint schedule property, having an extent of 67 cents and a building therein, belonged in jenmam to Nilambur Kovilakom and from there Cheriyil Unnooli took it on lease by registered lease deed No.2808/1943. The said Unnooli died in he year 1958 and the plaint schedule property was inherited by her only son Raman. The said Raman also died. His legal heirs

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R.S.A. No. 1294 of 2004

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-: 2 :-

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are the plaintiffs, two in number, their elder sister Sarojini and their mother Vally. As legal heirs, they inherited the property and they were in joint possession of the same and were residing in the house therein. At the time of death of Raman, the plaintiffs and their elder sister Sarojini were minors and their mother Vally was looking after their affairs. But, in the year 1962, Vally left her children at home and married another person and went along with him. Thereafter, the minor children were in the custody of one Kuttypuliyan Velukutty, who is the immediate neighbour and their mother's sister Unnipennu for some time. Meanwhile, the eldest sister Sarojini got married. The right of Sarojini and mother Vally in the plaint schedule property was surrendered to the minor plaintiffs by registered document No.1311/ 1965. In the aforesaid release deed, the plaintiffs were represented by the aforesaid neighbour Kuttypuliyan Velukutty as

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R.S.A. No. 1294 of 2004

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-: 3 :-

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their guardian. By Ext.A1, the plaintiffs had become absolute owners in possession of the property. After the marriage of the plaintiffs, they were residing with their husband away from the plaint schedule property. But, they used to come to their property occasionally and they were enjoying the same and the house in the plaint schedule property was kept locked. While so, on 02.02.1991, the defendants who were the immediate neighbours, trespassed into the plaint schedule property, broke open the lock of the house and started residing in the house. When the plaintiffs came to know the trespass, they approached the defendants and demanded surrender of possession; but they refused to vacate the possession. Hence, the suit was filed, seeking recovery of possession.

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In the written statement, the defendants

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denied the allegation that they are trespassers of the plaint schedule property and they took

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R.S.A. No. 1294 of 2004

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-: 4 :-

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possession on 02.02.1991. According to them, they

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have been in possession of the property as legal heirs of 'Velukutty', who was in possession and enjoyment of the property from the date of Ext.A1. The 1^st defendant is the son of 'Velukutty', who acted as guardian of the plaintiffs in Ext.A1 release deed. They admitted that the plaintiffs, 'Sarojini' and 'Vally' were legal heirs of deceased 'Raman', who was the owner in possession of the plaint schedule property. According to them, what is stated in Ext.A1 release deed is not correct. 'Velukkutty' had properties on east and west of plaint schedule property and he decided to purchase it and to prepare the sale deed, Sarojini's husband 'Chinnan' was entrusted. Accordingly, 'Chinnan' prepared a draft sale deed. In the draft sale deed, all the co-owners were sold their right to 'Velukkutty'. But, subsequently 'Chinnan' played a fraud and thus a release deed happened to be

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R.S.A. No. 1294 of 2004

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-: 5 :-

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executed, by way of deception. In fact, the defendants or 'Velukutty' had absolutely no knowledge that it was a release deed until the receipt of summons in the suit. The defendants were enjoying the property, as their own in succession to 'Velukutty', who had obtained Ext.B2 purchase certificate from the Land Tribunal, Nilambur. The house in the plaint schedule property stands assessed in the name of the defendants and they have been paying property tax as well as the building tax. In short, according to the defendants, the plaintiffs had never been in possession of the property ever since 1965. It is also contended that if the plaintiffs had title over the property, the same had been lost by adverse possession and limitation also. Hence, they prayed for dismissal of the suit.

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On the rival pleadings both parties adduced evidence consisting of oral testimony of PW1, DW1

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R.S.A. No. 1294 of 2004

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-: 6 :-

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and Exts.A1 and B1 to B8. The trial court has

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framed seven issues as preliminary issues. The trial court has considered:

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(1)whether the suit is maintainable?

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(2)whether the suit is barred by limitation?

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(3)whether the suit is barred by adverse possession and limitation?

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All the three issues are found in favour of

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the plaintiffs. Thereafter, considered the main issue whether the plaintiffs are entitled to get decree for recovery of possession with measne profits and that issue was also found in favour of the plaintiffs. Thus, the suit was decreed as prayed for.

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Feeling aggrieved, the defendants preferred the aforesaid appeal. After re-appreciating the evidence on record, the lower appellate court also considered the issue, whether the suit is barred by

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adverse possession and limitation? The lower

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R.S.A. No. 1294 of 2004

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-: 7 :-

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appellate court found that the suit is barred by limitation under Article 65 of the Limitation Act, 1963 ( hereinafter referred as 'the Act') . Thus, the divergent findings on the question of limitation has come up before this Court, as substantial question of law to be considered.

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Heard the learned counsel for the

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appellants and the learned counsel for the respondents.

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Both counsel appearing for the parties advanced arguments on the divergent findings, on the question, whether the suit was barred by limitation? Therefore, the question to be considered is whether the lower appellate court is justified in reversing the findings of the trial court and arriving at a finding that the suit was barred by limitation under Article 65 of the Act. The ownership and possession of 'Raman' and subsequent inheritance over the property, by the plaintiffs and sister 'Sarojini'

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R.S.A. No. 1294 of 2004

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-: 8 :-

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and mother 'Vally', as legal heirs of deceased

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'Raman' are not disputed.

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It is the case of the plaintiffs that their

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mother left at home and the eldest sister 'Sarojini' got married, when they were minors and they were in

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custody and care of 'Velukutty', the father of the 1^st defendant and their mother's sister 'Unnipennu' for sometime. At the time of marriage of 'Sarojini', their mother 'Vally' and 'Sarojini' had executed Ext.A1 release deed, relinquishing their right over the property for consideration in favour of the plaintiffs and in Ext.A1 they were represented by 'Velukkutty' as guardian. But, they themselves have took possession of the property and thereafter they have been in absolute enjoyment and possession of the property, even after attaining majority. The cause of action for the present suit arose on 02.02.1991, when the defendants, who are the son and daughter-in-law of 'Velukutty' trespassed into the

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R.S.A. No. 1294 of 2004

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-: 9 :-

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plaint schedule property and house therein and started to reside in the house. On the other hand, the defendants contended that even though Ext.A1 release deed was executed, as a deed relinquishing right of 'Sarojini' and 'Vally', it was a sale deed executed in favour of 'Velukutty', as he intended to purchase the property. The execution of sale deed was entrusted to one 'Chinnan', the husband of 'Sarojini' and 'Chinnan' executed the release deed instead of sale deed, by way of fraud and deception. According to them, ever since the execution of Ext.A1 sale deed, 'Velukutty' was in possession of the plaint schedule property and building and after the death of 'Velukutty', the legal heirs of 'Velukutty' had effected Ext.B3 partition deed and in that partition deed, the plaint schedule property and house therein was set apart in favour of the 1^st defendant. Thus, after Ext.B3 partition deed, the defendants have been enjoying the property, as

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R.S.A. No. 1294 of 2004

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-: 10 :-

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absolute owners in possession of the property. So, they are not liable to be evicted from the plaint schedule property and house therein.

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As held above, the substantial question of law to be considered at first is, whether the suit was barred by limitation or not? It is not disputed that the plaintiffs were minors, aged 13 and 11 at the time of execution of Ext.A1 release deed in the year 1965 and they were represented by 'Velukutty', the deceased father of the 1^st defendant, as their guardian. Going by Ext.A1 release deed, it could be seen that Ext.A1 is nothing other than a release deed, relinquishing the right of mother 'Vally' and sister 'Sarojini' in favour of the plaintiffs and 'Velukutty', who stood as guardian to take possession of the property for and on behalf of the minors. Even though, the defendants have contended that Ext.A1 was executed by way of fraud employed by one 'Chinnnan' the husband of 'Sarojini' and the

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R.S.A. No. 1294 of 2004

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-: 11 :-

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real intention of 'Velukutty' was to get executed a sale deed and not a release deed, no evidence has been adduced to substantiate the said contention. Hence, this Court is unable to countenance the said contention raised by the defendants and this Court finds that Ext.A1 is a release deed, wherein the minors were represented by the guardian. Further,

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this Court finds that even if 'Velukutty' had took possession of the property, his possession was for and on behalf of the minors, whom he had represented and he had no independent right at all to assert the right over the property, particularly, when the recital in Ext.A1 specifies that his status in Ext.A1 is the guardian of the minors alone. Thus, no independent right would have been accrued upon 'Velukutty' under Ext.A1 and he continued right and possession for and on behalf of the minors, who were aged 13 and 11, respectively till they attained majority. But, subsequently, the 1^st plaintiff

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R.S.A. No. 1294 of 2004

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-: 12 :-

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attained majority in the year 1970 and the 2^nd

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plaintiff attained majority in the year 1972. Needless to say, after the attainment of majority, the guardianship automatically ceased to exist and the earlier possession for and on behalf of the minors cannot be continued as such.

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It is the specific case of the plaintiffs that they have been in possession and enjoyment of the property from the very inception of Ext.A1 till 02.02.1991, the day on which the 1^st defendant allegedly trespassed into the plaint schedule property and took possession of the property and house therein. But, it is pertinent to note that absolutely there is no evidence other than oral assertion of PW1 to show that they have been in possession and enjoyment of the property from 1965 to 1991.

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On the other hand, the defendants have produced Exts.B5 to B8 to prove that after Ext.A1,

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R.S.A. No. 1294 of 2004

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-: 13 :-

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'Velukutty' was in possession of the property and building and thereafter, the 1^st defendant got right and possession over the property, by virtue of Ext.B3 and the 1^st defendant has been paying property tax and building tax. Ext.B5(a) is the building tax assessment register during the period from 1988 to 1993. Ext.B5(a) is the building tax assessment register during the period from 1993-94 and 1997-98. Ext.B6 series are patta receipts dated 02.03.1966 and 22.02.1968 issued in the name of 'Velukutty'. Ext.B7 series of building tax receipts are dated 17.11.1981, 17.11.1989, 27.01.1997 and 16.02.1998 respectively and Ext.B2 property tax is dated 22.02.1996. Thus, the defendants had succeeded in proving that deceased 'Velukutty' and thereafter his son, the 1^st defendant have been in possession and enjoyment of the plaint schedule property from 02.03.1966 onwards. That apart, Ext.B2 is the purchase certificate dated 24.07.1976, issued by the

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R.S.A. No. 1294 of 2004

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-: 14 :-

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Land Tribunal in favour of the deceased 'Velukutty' with respect to the plaint schedule property.

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On an analysis of the aforesaid documentary

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evidence, it could be seen that even after the attainment of majority by the 1^st plaintiff in the year 1970 and the 2^nd plaintiff in the year 1972, 'Velukutty' continued his possession over the

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property in animus to the interest of the plaintiffs. Thus, the possession of 'Velukutty' has become hostile to the plaintiffs in the year 1970 and 1972, respectively and thereafter he continued his possession uninterruptedly and openly and even now the 1^st defendant is in possession of the property and the house therein as legal heir of 'Velukutty', who got right over the property, by virtue of Ext.B3 partition deed. According to Article 65 of the Act, ' for possession of immovable property or interest therein based on title, the

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period of limitation is 12 years from when the

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R.S.A. No. 1294 of 2004

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-: 15 :-

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possession of the defendant becomes adverse to the plaintiff'. This Court is of the view that possession of 'Velukutty' has become adverse to the plaintiffs in the year 1970 and 1972 respectively. But, the present suit for recovery of possession was filed on 09.04.1996 only.

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Put it differently, the plaintiffs 1 and 2 ought to have filed the suit for recovery of possession within 12 years from 1970 and 1972, respectively. The 1^st plaintiff ought to have filed the suit before 1983 and the 2^nd plaintiff ought to have filed the suit before 1985. Needless to say, the present suit which has filed on 09.04.1996 stands barred by limitation.

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In the above analysis, the lower appellate court is justified in finding that the suit was barred by limitation under Article 65 of the Act, since the suit itself was not maintainable. There

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was no need to consider the other issues on merits.

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R.S.A. No. 1294 of 2004

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-: 16 :-

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Thus, the substantial question of law raised in this Regular Second Appeal is answered accordingly. There is no illegality or impropriety in the findings of the lower appellate court.

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Hence, the Regular Second Appeal is dismissed accordingly.

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All pending interlocutory applications will

stand closed.

Sd/-

K. HARILAL,

JUDGE

NaN/DST

//True copy//

P.A. To Judge

Devaki v. Changaru @

Case brief

What is this about?

What did the court decide?

Devaki v. Changaru @

Case brief

What is this about?

What did the court decide?

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