Partly allowed

K.C.Ninan v. State of Kerala

Kerala HC24 May 2017RSA/575/2011

Case brief

AI extract

What is this about?

The Kerala High Court examined whether a plaintiff could claim title via adverse possession over government land. The Court held that tacking possession was valid, unknown possession sufficed, and a 2003 assignment application did not revive the Government's rights extinguished in 1997. However, a suit for title declaration was barred as adverse possession acts as a shield, not a sword, while the

What did the court decide?

The Regular Second Appeal was allowed in part. The decree of perpetual injunction granted to the plaintiff in the original suit was restored, confined to the land within the compound wall.

K.C.Ninan Vs State of Kerala — Property and Title | 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 B.KEMAL PASHA

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WEDNESDAY, THE 24TH DAY OF MAY 2017/3RD JYAISHTA, 1939

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RSA.No. 575 of 2011 (B)

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AGAINST THE JUDGMENT AND DECREE DATED 06-01-2011 IN AS 17/2009 of SUB COURT, KOCHI-5

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AGAINST THE JUDGMENT AND DECREE DATED 30.10.2008 IN OS 199/2007 of PRINCIPAL MUNSIFF COURT, KOCHI

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APPELLANT/RESPONDENT/PLAINTIFF:

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K.C.NINAN, S/O.K.C.CHACKO, AGED 73 YEARS, KALLUVILA, THANKASSERY, KOLLAM, (NOW RESIDING AT BABY MARINE INTERNATIONAL, THOPPUMPADY, KOCHI).

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BY ADVS.SRI.BECHU KURIAN THOMAS (SR) SRI.ENOCH DAVID SIMON JOEL SMT.NISHA JOHN SRI.ROSHEN.D.ALEXANDER

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RESPONDENTS/APPELLANTS/DEFENDANTS:

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1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2. THE DISTRICT COLLECTOR, COLLECTORATE, KAKKANADU, ERNAKULAM - 682030.

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3. THE THAHSILDAR, KOCHI TALUK, ERNAKULAM DISTRICT - 682001.

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BY GOVERNMENT PLEADER SMT.K.B.SONY

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 24-05-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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DSV/-

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[CR]

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B. KEMAL PASHA, J.

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R.S.A. No. 575 of 2011

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Dated this the 24^th day of May, 2017

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J U D G M E N T

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(1) Whether the period of appellant's possession over the property in question can be 'tacked' with the period of possession of that property by the predecessor-in-interest?

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(2) Whether unknown possession can invite adverse possession?

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(3) When the rights of the Government over a piece of property had already extinguished in the year 1998 due to the operation of Section 27 of the Limitation Act, can an application on behalf of the possessor for assignment of that property in the year 2003 dis-entitle the possessor to claim adverse possession?

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The plaintiff in O.S.No.199/2007 of the Principal

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Munsiff's Court, Kochi is the appellant herein. The suit is

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R.S.A. 575 of 2011

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-: 2 :-

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one for declaration of the plaintiff's title and possession over the plaint schedule property, for a perpetual injunction restraining the defendants from trespassing into the plaint schedule property and from interfering with the plaintiff's possession and enjoyment of the plaint schedule property, and from committing any waste thereon.

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The plaint schedule property is shown in the plaint as 17.5 cents of land and the part of building No.18/49 According to the plaintiff, the said 17.5 cents of land forms part of the total extent of one acre and half cent of property. The whole extent of property is lying in various survey numbers. The plaint schedule property is in Sy.No.1166 of the Rameswaram Village, Kochi Taluk. According to the plaintiff, he purchased the whole property in court auction dated 31.10.1989 in E.P. No.112 of 1989 in O.S.No.2/1979 of the Principal Subordinate Judge's Court, Kochi. The sale was confirmed on 22.01.1990 and Ext.A2 sale certificate

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R.S.A. 575 of 2011

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was also issued to the plaintiff. He has been in possession of the property from 22.01.1990 and has been paying land tax.

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The plaintiff has been conducting processing and freezing of sea food for export business carried on by him in

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the name and style as 'M/s Baby Marine International'. At the time of purchase in court auction, the predecessor-ininterest of the property had already constructed compound wall and had put up factory sheds in the property. After the purchase of the property, the plaintiff continued to possess all the same. In the meantime, it was informed that some extent of land coming within the compound wall of the plaintiff's property in Sy.No.1166 is “puzha puramboke ”. On enquiry, it was revealed that L.C.No.11/67 was booked against the predecessor in title of property, M/s United Industries alleging encroachment, under the Land Conservancy Act. Still, the alleged encroachment was not

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R.S.A. 575 of 2011

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removed. It is the case of the plaintiff that when L.C. Case was booked in the year 1967 as against the predecessor-ininterest of the plaintiff over the property, the possession of the predecessor-in-interest became adverse to the Government for the period from 1967 onwards. When the plaintiff has acquired the said property through court auction, all the said rights devolved on the plaintiff, and presently, the Government has lost their rights over the property. According to the plaintiff, he has prescriptive title over the property on account of adverse possession and limitation.

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The defendants contended that the suit is not maintainable since the matter comes under the purview of the Land Conservancy Act. According to the defendants, the Village Officer, Rameswaram has reported that the plaintiff is in illegal possession of 17.584 cents of kayal puramboke with unauthorized construction of buildings,

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R.S.A. 575 of 2011

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compound walls etc. Out of the same, 10.700 cents of land is within the compound wall and the remaining extent of 6.884 cents of land is outside the compound wall. According to the defendants, the plaintiff has encroached into the portions of the kayal puramboke adjacent to the patta land and reduced it into his possession and therefore, the proceedings under the Land Conservancy Act were initiated. It has also been contended that L.C. Case No.1/2003 has been initiated against the plaintiff and further that the Manager of the plaintiff's Company had filed an application for assignment of the said puramboke land in the possession of the plaintiff, in the year 2003. Over and above it, L.C. tax to the tune of ₹1,114/- was also remitted by the Manager of the plaintiff's Company at the Village Office, Rameswaram, under Section 7 of the Land Conservancy Act. Since the land requested for assignment is kayal puramboke , the same is not assignable. The plaintiff

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R.S.A. 575 of 2011

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was served with notice dated 22.07.2003 after due inquiry.

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The plaintiff has never perfected his title over the property by adverse possession.

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Initially, the Principal Munsiff's Court, Kochi decreed the suit in terms of the plaint. Aggrieved by the judgment and decree, the defendants filed A.S.No.17/2009 before the Subordinate Judge's Court, Kochi. The lower appellate court allowed the appeal by setting aside the judgment and decree passed by the Munsiff's court.

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This second appeal has been admitted by this Court on the following substantial questions of law:

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“(1) When in spite of Ext.A8 notice of eviction issued under Rule 13A of Land Conservancy Act, possession of the predecessor in interest of the appellant was not disturbed, and the appellant has claimed title by adverse possession over the same property, whether the first appellate court was justified in holding that

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R.S.A. 575 of 2011

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the plaint schedule property is not identified.

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(2) When the property taken delivery under Ext.A2 sale certificate from Sub Court, Kochi is the land and the building to the west of the old compound wall and appellant and his predecessors have been in exclusive possession of that property, whether the claim for title perfected by adverse possession is sustainable and if so, whether respondents are entitled to evict him.

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(3) Once the title is perfected by adverse possession, whether an application for assignment to the Government would destroy the title and whether the assignment applied for is in respect of the plaint schedule property.”

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Heard the learned Senior Counsel for the appellant Sri.Bechu Kurian Thomas and the learned Government Pleader Smt.K.B. Sony.

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The learned Senior Counsel for the appellant has

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R.S.A. 575 of 2011

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argued that the application allegedly filed by the Manager of the plaintiff's company in the year 2003 seeking assignment of the land cannot militate against the claim of adverse possession and limitation raised by the appellant when the Government has lost all their rights over the property even much prior to that on account of the continued adverse possession of the plaintiff following the predecessor-ininterest of the property. It has been argued that from the year 1967 onwards, the possession of the predecessor-ininterest of the property had become adverse to the Government and therefore, after the expiry of 30 years from 1967, i.e., after 1997, the Government has lost all their rights, if any, over the property and they have no right either to evict the appellant or to recover possession or forward any claim over the property. The learned Senior Counsel has fairly conceded that the appellant is not forwarding any claim over any piece of land, which is lying outside the

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R.S.A. 575 of 2011

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-: 9 :-

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compound wall, and has been limiting his claim of adverse possession over 10.700 cents of property only in Sy.No.1166 of Rameswaram Village, which lies inside the compound wall of the appellant. It has also been considered that even though the plaintiff has made use of 6.884 cents of property also in the said survey, which is lying outside the compound wall as a garden, the appellant is not presently making any claim over that piece of land.

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Per contra , the learned Government Pleader has argued that the appellant cannot forward any right based on Section 27 of the Limitation Act, when the Manager of the appellant has chosen to admit the title of the Government over the property in the year 2003 by filing an application seeking assignment and also when the L.C. Tax has been paid in the year 2003. According to the learned Government Pleader, the judgment and decree passed by the lower appellate court are not liable to be interfered with.

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R.S.A. 575 of 2011

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It is the admitted case that L.C. proceedings

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were initiated first against the predecessor-in-interest of the property in the year 1967. It is the further admitted case that so far the plaintiff has not been evicted from the property, and property has not been recovered either from the predecessor-in-interest of the plaintiff or from the plaintiff. Still, the appellant continues to be in possession of the entire land coming within the compound wall. Even though there was an attempt to make out that the compound wall is a newly constructed one by encroaching into the puramboke land, there is no evidence to show such an aspect. PW3, who was one of the employees under the predecessor-in-interest of the plaintiff's property, has categorically deposed that such a compound wall was in existence even when the property was in the possession and enjoyment of the predecessor-in-interest of the said

property.

R.S.A. 575 of 2011

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It has been pointed out that the appellant has been conducting business by adopting European unit standards and therefore, the compound wall, buildings and all the structures in the property have to be maintained according to that standard. In such a case, the compound wall and the building have to be newly painted every year and such works may tend to show that the structures are new. The said submission forwarded by the learned Senior Counsel is only to be accepted.

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It stands proved that from the year 1967 onwards, the possession of the disputed land within the compound wall became adverse to the Government. When the plaintiff/appellant purchased the property in court auction from the predecessor-in-interest, who happened to be the judgment debtor in that particular case, and the appellant took possession of the property on the basis of Ext.A2 sale certificate, it is evident that the appellant continued to

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R.S.A. 575 of 2011

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possess all those properties within the compound wall, in continuation of the possession and enjoyment of the predecessor-in-interest of the property. Therefore, the possession of the property by the predecessor-in-interest from 1967 and the continued possession by the appellant on the basis of Ext.A2 sale certificate is clearly adverse to the defendants.

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In George Mitran v. Gerfrude [1990 (1) KLT 204] , a learned Single Judge of this Court had considered the principle of 'tacking'. The said principle is squarely applicable to the possession of the appellant in respect of the said property in this case. The appellant continued to possess the said property as such in continuation of the possession of the predecessor-in-interest. It is trite law that the period of enjoyment by an ancestor and his heir, the period of possession of landlord and tenant or the period of enjoyment of vendor and purchaser or persons claiming

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R.S.A. 575 of 2011

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under the said title, may jointly be added to make out the complete prescriptive period. Therefore, the period of possession by the appellant has to be added to the period of possession by the predecessor-in-interest of the appellant's property, to calculate the prescriptive period.

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The next question to be considered is whether the plaintiff could claim adverse possession over the said piece of land when the plaintiff was not aware of the fact that the said piece of land is the property of the Government. The said question has been clearly answered by the learned Single Judge of this Court in Raman Nair Madhavan Nair v. Kuttiyamma Karthiyaniamma [1954 KLT 195] . It was held therein that even unknown possession will constitute adverse possession. It was held therein:

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“Where a grantee, in taking possession under his deed, goes unintentionally and by mistake beyond his proper boundaries, and enters upon and actually occupies

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R.S.A. 575 of 2011

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and improves lands not included in the deed, claiming and supposing to be his, this occupation is deemed adverse within the meaning of the statue of limitation, and, if continued the requisite length of time, will bar the right of the true owner. The enjoyment, though under the mistaken notion of right, would still be adverse to the real owner of the property.”

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Therefore, the fact that the appellant was not aware of the identify of the property in his possession within the compound wall does not militate against the claim of adverse possession set up by the appellant.

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The next aspect to be considered is whether the appellant can claim adverse possession over the property when the appellant had paid L.C. tax in the year 2003 and his Manager had filed an application for assignment in the year 2003. It is true that in the year 2003, the Manager of the appellant paid L.C. tax and also filed an application

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R.S.A. 575 of 2011

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seeking assignment, when they came to know that a piece of land lying inside the compound wall comes within the kayal puramboke. It has to be noted that such an application was filed in the year 2003 only.

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It has to be noted that after 1997, the Government has lost all those rights over the said piece of land lying within the compound wall of the plaintiff's property. When, 30 years have been elapsed, it cannot be contended that the possession of the predecessor of the property as continued by the appellant was not adverse to the Government from 1968 onwards. In the year 1967, L.C. case was booked at first, and there was an attempt to evict the plaintiff. Subsequently, there was no interference from the part of the Government in the continued possession and enjoyment of the predecessor-in-interest, and such possession and enjoyment was continued by the plaintiff over the property till 2003. Therefore, during the period

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R.S.A. 575 of 2011

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between 1968 and 2003, the possession of that piece of land lying within the compound wall by the predecessor-ininterest of the plaintiff, continued by the plaintiff was open, peaceful, uninterrupted and as of right to the total exclusion of the Government, who is the title holder of the property.

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When a right has been crystallized, it will not lose its status after that particular period since there was no voluntary surrender or relinquishment by the appellant. Here, the right to retain the property by the possessor was crystallized in the year 1997 and the rights of the Government over that piece of land to recover possession and to evict the appellant was lost. In such case, the said rights of the Government cannot be revived merely because of the fact that L.C. tax was levied in the year 2003 and the same was paid by the appellant in the year 2003. Any such interruptions or interferences were not there during the period between 1968 and 2003. There is considerable force

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R.S.A. 575 of 2011

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in the argument forwarded by the learned Senior Counsel for the appellant that the appellant was not aware of the fact that any such piece of land was there inside the compound wall, and as and when they came to know it, they rightly applied for the assignment of the property and they were ready and willing to part with the amounts due to Government, if any. Even though such an application for assignment was filed, it cannot be considered that it was as good as a voluntary surrender or relinquishment by the plaintiff.

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Similar questions were considered by a Division

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Bench of this Court in the decision in Ribera and others v. Kurien and others [1966 KLT 1084], wherein it was held in paragraph 5 that-

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“If a party who is out of possession for twelve years and whose suit for possession is therefore barred, is again let into possession, he is not remitted to his old title. The principle is,

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R.S.A. 575 of 2011

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that when the title of the former owner has been extinguished by prescription, his title is not restored and he will be treated only as a trespasser should he come into possession again.”

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By applying the said principle, it has to be said that when the rights of the government have been extinguished in the year 1998 in respect of the said piece of land coming within the compound wall of the appellant's company, the rights of the government could not have been restored on account of some subsequent acts committed in the year 2003.

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The learned Government Pleader has relied on the decision in P.T.Munichikkanna Reddy and others v. Revamma and others [(2007) 6 SCC 59] , wherein it was held that the right to property has to be considered as a part of human rights and, therefore, even claim of adverse possession has to be read in that context. At the same time, Section 27 of the Limitation Act has not been struck down or

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R.S.A. 575 of 2011

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declared as ultravires to the Constitution.

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Further, the learned Government Pleader has argued that in view of Section 27 of the Limitation Act, the title of the government over the property has not been lost even if a claim of adverse possession is there. It is true that the plaintiff has sought for a relief of declaration of his title over the property. This Court has occasion to consider the said question in Treesa Mohanan @ Lilly and another v. O.V.Alexander and another [2017 (2) KHC 696] and also in

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Mohini v. Thimmappa [2015 (4) KLT 759] . In Mohini (supra) , it was held that a suit for declaration of title over a property by virtue of adverse possession and limitation is not maintainable. In Treesa Mohanan (supra) , this Court has held in paragraphs 25 and 26 that-

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“ 25. It is discernible from Article 65 that the persons entitled to seek such possession of immovable property or any interest based on title, have the right to institute such a suit

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R.S.A. 575 of 2011

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for possession, within the period of 12 years from the date on which the possession of the defendant becomes adverse to the plaintiff. Therefore, such persons shall have the right to institute such suits only within the period of 12 years mentioned therein. Matters being so, it is evident that the “right” mentioned in Section 27 is the right to recover possession and nothing more. What is being extinguished under Section 27 is the right to recover possession. Nowhere it is mentioned that the title of such person will be extinguished. The extinguishment of right to property mentioned in Section 27 of the Limitation Act in a suit like this, is the extinguishment of the right to recover possession under Article 65 of the Limitation Act and nothing more.

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26. When there is no extinguishment of title, the extinguishment of the right of the title holder to recover possession of such an immovable property, will not confer title on the person, who is in adverse possession of such

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R.S.A. 575 of 2011

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property. That is the reason why it has been said that such adverse possession can be used as a “shield and not as a sword”. The person, who is in adverse possession, can defend the claim of dispossession by making use of such adverse possession as a shield. At the same time, he cannot forward a claim that he has title over the property and he can get it declared through a Court. Therefore, in this particular case also, the plaintiffs are not entitled to get a decree declaring their title over plaint B schedule item. ”

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Matters being so, it has to be noted that on the expiry of the period of 30 years, the government has lost all its rights over the property as contemplated under Section 27 of the Limitation Act. The right mentioned in Section 27 is nothing but the right to recover possession. What is being extinguished under Section 27 is the right to recover possession. Nowhere it has been mentioned that the title of the original owner will be extinguished. The person, who is

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R.S.A. 575 of 2011

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claiming adverse possession, can make use of the said claim as a shield to protect his possession and he cannot wield it as a sword to snatch away the title. Matters being so, the decree passed by the lower appellate court regarding the relief of declaration of title forwarded by the plaintiff seems to be correct.

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In Treesa Mohanan (supra), this Court has held

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in paragraph 27 that-

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“ Regarding the decree of perpetual injunction sought for, the plaintiffs are entitled to maintain a suit for perpetual injunction against persons other than rightful owners. At the same time, the defendants are not entitled to dispossess the plaintiffs from plaint B schedule item since their right to recover possession of plaint B schedule item under Article 65 has become extinguished within the meaning of Section 27 of the Limitation Act. In such case, the defendants cannot be styled as rightful owners of plaint B schedule item

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R.S.A. 575 of 2011

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when their right to sue under Article 65 has become extinguished. Therefore, a decree of perpetual injunction can be passed restraining the defendants from interfering with the peaceful possession of the plaintiffs over the plaint B schedule item and from dispossessing the plaintiffs from plaint B schedule item, otherwise than through due process of law. ”

¶130

It is trite law that a person in possession cannot maintain a suit for injunction against the rightful owner. As discussed above in Mohini (supra) , in this particular case, the government cannot be said to be a rightful owner with regard to the said piece of land coming within the compound wall of the appellant's company. When the government has lost all its rights over that piece of land within the meaning of Section 27 of the Limitation Act, the government cannot be said to be a rightful owner. Therefore, the appellant can well maintain a suit for injunction for protecting his possession

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R.S.A. 575 of 2011

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against the government. There was no reason for the lower appellate court to interfere in that part of the decree passed by the Munsiff's Court regarding the relief of perpetual injunction. Matters being so, the judgment and decree passed by the lower appellate court regarding the relief of injunction are liable to be set aside.

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In the result, this Regular Second Appeal is allowed in part and the judgment and decree passed by the Principal Munsiff's Court, Kochi, by which the relief of perpetual injunction was granted to the plaintiff, is restored. That part of the judgment of the lower appellate court is set aside. At the same time, it is made clear that the decree of perpetual injunction is confined to that piece of land having an extent of 10.700 cents in survey No.1166 of the Rameswaram Village, coming within the compound wall of the appellant's Company. The appellant has no manner of right over that piece of land having an extent of 6.884 cents in survey

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R.S.A. 575 of 2011

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No.1166 of the Rameswaram Village, lying outside the compound wall of the appellant's Company. All pending interlocutory applications in this appeal are closed.

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Sd/-

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B. KEMAL PASHA, JUDGE.

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ul/aks/-

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[True Copy]

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P.S. to Judge

K.C.Ninan v. State of Kerala

Case brief

What is this about?

What did the court decide?

K.C.Ninan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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