Allowed

Mohammedkutty Haji v. Janu

Kerala HC22 Mar 2019RSA/668/2005

Case brief

AI extract

What is this about?

Regarding a suit for recovery of possession reversed by the first appellate court, the High Court of Kerala allowed the appeal. It held that possession based on a lawful title cannot become adverse without clear ouster, overturning the lower court's view on adverse possession under the Kerala Land Reforms Act.

What did the court decide?

The decree and judgment of the first appellate court were set aside, and the suit was decreed by restoring the trial court's decree.

Mohammedkutty Haji Vs Janu — Landlord and Tenant | Kerala HC (2019)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR. JUSTICE P.SOMARAJAN

¶4

FRIDAY, THE 22ND DAY OF MARCH 2019 / 1ST CHAITHRA, 1941

¶5

RSA.No. 668 of 2005

¶6

AGAINST THE JUDGMENT AND DECREE IN AS 57/1995 of SUB COURT, TIRUR DATED 26-02-2005

¶7

AGAINST THE JUDGMENT AND DECREE IN OS 180/1992 of MUNSIFF COURT ,PARAPPANANGADI DATED 21-01-1995

¶8

APPELLANTS/RESPONDENTS IN A.S./PLAINTIFFS IN THE SUIT:

¶9

1 MOHAMMEDKUTTY HAJI, S/O.SAIDALAVI, MOOZHIKKAL HOUSE, TRIKKULAM AMSOM DESOM,, TIRURANGADI TALUK.

¶10

2 PATHUMMA UMMA, D/O.SAIDALAVI MOOZHIKKAL HOUSE, THRIKKULAM AMSOM DESOM,, TIRURANGADI TALUK.

¶11

3 SAINABA, D/O.VEERAN, MOOZHIKKAL HOUSE DO. DO.

¶12

4 SAFIYA, D/O.VEERAN DO. DO.

¶13

5 ARIFA, D/O.VEERAN DO. DO.

¶14

6 RASEENI, D/O.VEERAN DO. DO.

¶15

7 NISHAD, D/O.VEERAN DO. DO.

¶16

8 NABEESA UMMA, W/O.VEERAN DO. DO.

¶17

9 MACHINGAL ABDUSAMAD, S/O.MOIDEEN TRIKKULAM AMSOM DESOM, TIRURANGADI TALUK.

¶18

BY ADVS.

¶19

SRI.K.RAMACHANDRAN SMT.R.MEERA SRI.K.MOHAMMED FAISAL NAHA SRI.P.RAMACHANDRAN

¶20

RSA.No. 668 of 2005 2

¶21

RESPONDENTS/APPELLANT 3 TO 9 AND 11 TO 20 IN A.S./LEGAL REPRESENTATIVES OF DEFENDANT IN THE SUIT:

¶22

1	JANU, D/O.LATE KUNHAPPU, CHERUPARAMBATH HOUSE, ULLANAM AMSOM DESOM,, IN TIRURANGADI TALUK, MALAPPURAM DISTRICT.
2	MADHAVI, D/O.ALTE KUNHAPPU DO. DO.
3	AMMUNNI, S/O.LATE KUNHAPPU DO. DO.
4	KALLYANI, D/O.LATE KUNHAPPU DO. DO.
5	KUMARAN, S/O.LATE KUNHAPPU DO. DO.
6	KRISHNAN, S/O.LATE KUNHAPPU DO. DO.
7	CHANDRAN, S/O.LATE KUNHAPPU DO. DO.
8	UNNI, S/O.LATE CHERIYATH CHERUPARAMBATH HOUSE, DO. DO.
9	SANTHA, D/O.LATE CHERIYATH DO. DO.
10	RADHA, D/O.LATE CHERIYATH DO. DO.
11	SOBHANA, D/O.LATE CHERIYATH DO. DO.
12	SURESHAN, S/O.LATE CHERIYATH DO. DO.
13	DASSAN, S/O.LATE CHERIYATH DO. DO.
14	REEJA, D/O.LATE CHERIYATH DO. DO.

¶23

RSA.No. 668 of 2005 3

¶24

15 SHAJU, S/O.LATE CHERIYATH DO. DO.

¶25

16 BUNIKUMAR, S/O.LATE CHERIYATH DO. DO.

¶26

17 KALLYANI, W/O.LATE CHERIYATH DO. DO.

¶27

BY ADVS. } SRI.T.KRISHNANUNNI (SR.) } SMT.MEENA.A. } R1 TO R17 SRI.SAJU.S.A

¶28

THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶29

RSA.No. 668 of 2005 4

¶30

JUDGMENT

¶31

A suit for recovery of possession and

¶32

injunction based on title ended in a decree in the trial court, but it was reversed in appeal by dismissing the suit. Aggrieved by the said decree and judgment, the plaintiffs came up with this

¶33

appeal.

¶34

The question came up for consideration is:

¶35

Whether a person can claim adverse possession and limitation with respect to a possession over immovable property referring to a title ?

¶36

The subject matter of the suit comes to 85 cents of property in resurvey No.195/1. The title holder of the property admittedly was the

¶37

plaintiffs. The defendants came into possession of

¶38

the property in the year 1966 as a cultivating tenant. It was after 1.4.1964 after the

¶39

commencement of Kerala Land Reforms Act, the Act 1 of 1964. Section 74 is a prohibition in creating

¶40

RSA.No. 668 of 2005 5

¶41

future tenancy over land. But overlooking the said provision, a tenancy on the land was created in the

¶42

year 1966 in favour of the defendants and

¶43

defendants were holding the property under the said arrangement. Now the claim of the defendants is that by virtue of Section 74 future tenancies are prohibited and as such the possession held by the defendants cannot be termed as a possession of lessee. Hence, claimed adverse possession and limitation, as no suit was brought into existence within 12 years from the date of entrustment, i.e in the year 1966.

¶44

The legal position was very much settled by a catena of decision. When the possession of a

¶45

person referring to a lawful title, there cannot be any adverse possession and limitation unless there

¶46

is a clear ouster. The fact that he had obtained

¶47

the property in the year 1966, under a lease

¶48

mistakenly without noticing Section 74 of the said

¶49

RSA.No. 668 of 2005 6

¶50

Act cannot alter the permissive possession held by

¶51

the defendants under the land owner. In other words, when the possession referring to a lawful title, there cannot be an adverse possession and

¶52

limitation unless there is a clear ouster established. The first appellate court went wrong in appreciating and applying the legal position in its correct perspective and as such, it is liable to be set aside. The second appeal is allowed. The decree and judgment of first appellate court is set aside and the suit is decreed by restoring the decree granted by the trial court, but without costs.

¶53

This Second Appeal is allowed accordingly. No

¶54

costs.

¶55

Sd/-

¶56

P.SOMARAJAN, JUDGE

¶57

¶58

// TRUE COPY // PA TO JUDGE

Mohammedkutty Haji v. Janu

Case brief

What is this about?

What did the court decide?

Mohammedkutty Haji v. Janu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Gopinathan Vs Balan @ Ayyappan

Radhamani and Others Vs Mrinalini & Others

V.K.Rajan Vs Krishna Parameswar

Thankamma Vs Madava Kurp

P.Narayanankutty Vs v.Kesava Pillai

Lilly Vs Santhosh