Dismissed

V.v.Ponnappan v. M.K.Purushan

Kerala HC6 Feb 2020RSA/1153/2019

Case brief

AI extract

What is this about?

In a second appeal concerning recovery of immovable property based on title, the High Court held that under Limitation Act 1963, the plaintiff need not prove possession within 12 years if title is established. The defendant failed to prove hostility in possession due to admission of ownership via agreement for sale.

What did the court decide?

The appeal is dismissed; the decree for recovery of possession in favor of plaintiffs stands maintained.

V.v.Ponnappan Vs M.K.Purushan — Property and Title | Kerala HC (2020)

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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 SATHISH NINAN

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THURSDAY, THE 6TH DAY OF FEBRUARY 2020 / 17TH MAGHA, 1947

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RSA.No.1153 OF 2019

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AGAINST THE JUDGMENT AND DECREE IN AS 42/2018 OF SUB COURT, ALAPPUZHA DATED 16.02.2019

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AGAINST THE JUDGMENT AND DECREE IN OS 354/2013 OF PRL. MUNSIFF'S COURT, ALAPPUZHA

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APPELLANT/APPELLANT/DEFENDANT:

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V.V.PONNAPPAN (64),

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S/O VAINATHEYAN,VELIYIL HOUSE, THUMPOLY.P.O,ARYADU SOUTH VILLAGE,ALAPPUZHA.

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BY ADV. SRI.K.V.SADANANDA PRABHU

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RESPONDENTS/RESPONDENTS/PLAINTIFFS:

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1 M.K.PURUSHAN (72), S/O KRISHNAN,CHETHIKKATTU VELI, WARD NO.5, MUHAMMA PANCHAYATH, CHARAMANGALAM MURI, THANNERMUKHAM SOUTH VILLAGE, ALAPPUZHA - 688527.

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2 C.K.GOPALAN(69), S/O KRISHNAN,CHETHIKKATTU VELI, WARD NO.5, MUHAMMA PANCHAYATH, CHARAMANGALAM MURI, THANNERMUKHAM SOUTH VILLAGE, ALAPPUZHA - 688527.

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3 C.K.MUKUNDAN(64), S/O KRISHNAN,CHETHIKKATTU VELI, WARD NO.5, MUHAMMA PANCHAYATH, CHARAMANGALAM MURI, THANNERMUKHAM SOUTH VILLAGE, ALAPPUZHA - 688527.

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4 J.MAHILAMANI(55), D/O KRISHNAN,CHETHIKKATTU VELI, WARD NO.5, MUHAMMA PANCHAYATH, CHARAMANGALAM MURI, THANNERMUKHAM SOUTH VILLAGE, ALAPPUZHA - 688527.

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5 SOBHA(56), KORAKKULANGARA VELI THANNERMUKKAM NORTH VILLAGE,CHERTHALA-688527.

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RSA.No.1153 OF 2019 -2-

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6 GEETHA(54), KORAKKULANGARA VELI THANNERMUKKAM NORTH VILLAGE,CHERTHALA-688527.

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7 GIRIJA(51), KORAKKULANGARA VELI THANNERMUKKAM NORTH VILLAGE,CHERTHALA-688527

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8 AMBILI(48), KORAKKULANGARA VELI THANNERMUKKAM NORTH VILLAGE,CHERTHALA-688527.

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9 MADHU(45), KORAKKULANGARA VELI THANNERMUKKAM NORTH VILLAGE,CHERTHALA-688527.

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29.01.2020, THE COURT ON 06.02.2020 DELIVERED THE FOLLOWING:

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SATHISH NINAN, J.

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= = = = = = = = = = = = = = = = = = RSA No.1153 of 2019

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= = = = = = = = = = = = = = = = = = Dated this the 6^th day of February, 2020

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JUDGMENT

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Assailing a concurrent decree for recovery of possession on the strength of title, the defendant is in appeal.

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The plaint schedule property originally belonged to one Kunjamma as per Ext.A1 gift deed. She died issueless. The property devolved on her only brother Krishnan, the predecessor-in-interest of the present plaintiffs. On the death of Krishnan, the property vested with the plaintiffs. The predecessor of the plaintiffs had entrusted the defendant to look after the plaint schedule property. Since the defendant refuses to surrender possession of the property, the suit is filed for recovery of possession on the strength of title.

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Though the defendant admit that the title over the plaint schedule property originally vested with Kunjamma, the derivation of title as claimed by the plaintiffs is challenged. The alleged

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RSA No.1153 of 2019

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entrustment of the property by the plaintiffs' predecessor, was denied and it was contended that the defendant was put in possession by the original owner, Kunjamma under an agreement for sale. It is also contended that the suit is barred by res judicata in view of the decree in OS 606/1987 filed by the predecessor of the plaintiffs against the defendant. Further, the defendant claimed to have prescribed title over the property by adverse possession.

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On the challenge against title, both the courts below found that, on the death of Kunjamma, the original owner of the property, since she did not have any children the same devolved on the plaintiffs' father being the only sibling, and after him on the plaintiffs. Thus, the title of the plaintiffs was upheld. The plea of res judicata relying on the decree and judgment in OS 606/1987 was negatived holding that it was only a suit for prohibitory injunction and the issue involved was only, possession. The plea of adverse possession was also turned down.

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RSA No.1153 of 2019

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Heard learned counsel Sri.K.V.Sadananda Prabhu, on admission.

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The submission of the learned counsel for the appellant is that, by virtue of Exts.B1 and B2 judgment and decree in OS 606/1987 it is beyond challenge that the defendant is in possession of the plaint schedule property at least from the year 1987. The suit having been filed beyond 12 years therefrom, is barred by limitation. The plaintiffs do not have a case that they were in possession at any point of time within 12 years preceding the suit and that they were dispossessed by the defendant. Under Article 65 of the Limitation Act, the plaintiff is bound to prove his possession within a period of 12 years preceding the suit. Therefore, the suit is beyond the period of limitation, submits the learned counsel. The suit by the owner against the defendant seeking prohibitory injunction against trespass, alleging that the defendant was only entrusted with the management of the property, having been dismissed, necessarily the possession of the defendant can

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RSA No.1153 of 2019

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only be adverse to the interests of the owner. Twelve years having elapsed therefrom, the defendant has prescribed title by adverse possession, submits the counsel.

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In a suit for recovery of possession on the strength of title, under Article 65 of the Limitation Act, 1963, the period of limitation commences to run only when the nature/character of possession of the property by the defendant becomes adverse. The position under the old Limitation Act, 1908 has undergone a sea change under the Act of 1963. Though in terms of Article 142 and 144 of the Limitation Act 1908, it was necessary for the plaintiff to prove his possession and dispossession within 12 years preceding the suit, under the Limitation Act of 1963, when the suit is one on title, Article 65 of the Act applies and it is for the defendant to plead and prove as to when his possession became adverse to the owner also and that 12 years have elapsed therefrom. On such proof, the plaintiffs' suit for recovery of possession is barred by time and the defendant

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RSA No.1153 of 2019

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acquires prescriptive title over the property under Section 27 of the Limitation Act, 1963. The law has been reiterated by the Apex Court on several occasions. It would be apposite to refer to the judgment of the Apex Court in Saroop Singh v. Banto & Ors [(2005) 8 SCC 330] , wherein it was held as follows:-

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“The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession.”

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In Indira v. Arumugam and another [(1998) 1

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SCC 614] , the Apex Court, in an appeal that arose

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RSA No.1153 of 2019

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from a suit for recovery of possession on title, wherein the High Court held that the plaintiff did not prove possession within 12 years prior to the date of suit, held thus:-

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“The aforesaid reasoning of the learned Judge, with respect, cannot be sustained as it proceeds on the assumption as if old Article 142 of the earlier Limitation Act was in force wherein the plaintiff who based his case on title had to prove not only title but also possession within 12 years of the date of the suit. The said provision of law has undergone a metamorphic sea change as we find under the Limitation Act, 1963 Article 65

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which reads as under:

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Des	cription of suit	Period of limitatio n	Time from which period begins to run
65	For possession of immovable property or any interest therein based on title	Twelve years	When the possession of the defendant becomes adverse to the plaintiff

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It is therefore, obvious that when the suit is based on title for possession, once the title is established on the basis of relevant documents and other evidence unless the defendant proves adverse possession for the prescriptive period, the

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RSA No.1153 of 2019

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plaintiff cannot be non-suited.”

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The decisions relied on by the learned counsel for the appellant in Ramalah v. N. Narayana Reddy (AIR 2004 SC 4261) and Neelakanta Pillai Govinda Pillai v. Gouri Pillai [1971 KLJ 631] does not lay down a proposition that under Article 65 of the Limitation Act of 1963, in a suit for recovery on title, the plaintiff need to prove his possession within twelve years preceding the suit. Therefore, the argument of the learned counsel that, even in a suit for recovery of possession on the strength of title the plaintiff had to prove possession within twelve years of suit, is devoid of any merit and is repelled.

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On the question as to whether the defendant has prescribed title or not, it is pertinent to note that the defendant traces his possession to an agreement for sale under Kunjamma, the original owner of the property. Claim of possession under an agreement for sale operates against the claim for adverse possession since the possession under an

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RSA No.1153 of 2019

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agreement for sale can never be adverse but can only be in acknowledgment of the title of the true owner. [see Achal Reddi v. Ramakrishna Reddiar and others (1990) 4 SCC 706] . The law on the point is too well settled and I do not think it necessary to multiply authorities. The dismissal of the suit OS 606/1987 as is evident from Exts.B1 and B2 judgment and decree is only helpful in finding possession of the property by the defendant. Noticeably, in the suit OS 606/1987 also the defendant traces his title under the oral agreement for sale with the owner of the property. Exts.B1 and B2 is of no avail to the defendant.

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There is no plea as to the point of time when the possession traced by the defendant under the agreement for sale was given up by him and he started to hold the property with a hostile animus and adverse to the true owner. This is especially in view of the fact that, even in Ext.B1 OS 606/1987 and in the present suit, possession is claimed on the strength of the agreement for sale. Here the evidence of the defendant as DW1 assumes

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RSA No.1153 of 2019

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significance wherein he has, in cross-examination, stated that he claims possession under the oral agreement for sale and that he still holds on to possession under the same character. This cuts at the very root of the defendant's case regarding adverse possession. The plea of adverse possession has rightly been negatived by the court below. No other contentions are canvassed.

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No question of law much less any substantial question of law arises for consideration in this second appeal. The appeal fails and is accordingly dismissed.

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Sd/SATHISH NINAN JUDGE

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kns/-

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//True Copy//

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P.S. to Judge

V.v.Ponnappan v. M.K.Purushan

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V.v.Ponnappan v. M.K.Purushan

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