Defendant No.8 appealed a partition decree, arguing adverse possession barred the plaintiff's claim. The High Court dismissed the appeal, holding the defendant failed to prove ouster or hostile title, and rejected partial partition and non-joinder pleas.
Regular second appeal dismissed; regular second appeal firm.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 26TH DAY OF OCTOBER 2021 / 4TH KARTHIKA, 1943
RSA NO. 1306 OF 2009
AGAINST THE DECREE AND JUDGMENT DATED 27.08.2009 IN AS 27/2007 OF SUB COURT, KASARAGOD, KASARGOD
AGAINST THE DECREE AND JUDGMENT DATED 08.02.2007 IN OS 275/2006 OF
ADDITIONAL MUNSIFF, KASARAGOD, KASARGOD
APPELLANT/APPELLANT/8TH DEFENDANT:
*1 P.K.ABDULLAKUNHI (DIED) (LEGAL HEIRS IMPLEADED) S/O.MOIDINKUTTY, UBARLA HOUSE, KUBANOOR VILLAGE,POST BEKUR,, KASARGODE.
ADDL.A2 NABEESA U.T., AGED 68 YEARS W/O.LATE ABDULLA KUNHI P.K., ZEENATT MANZIL, P.O.BEKUR, VIA UPPALA, KASARGODE.
AGED 52 YEARS W/O.ABDULLA SANTHIKODE, P.O.BEKUR,NEW BADRIYA MANZIL, VIA.UPPALA, KASARGODE.
ADDL.R4 MAIMMONA, AGED 51 YEARS
W/O.N.IBRAHIM,RUBY MANZIL, P.O.PAIVALIKA, VIA.UPPALA, KASARGODE.
ADDL.A5 RAMLA, AGED 48 YEARS W/O.ABDUL KHADER, PAVOOR P.O., VIA.MANJESWAR, KASARGODE.
ADDL.A6 ABDUL AZIZ, AGED 41 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR, VIA.UPPALA, KASARGODE.
ADDL.A7 ZURAIR, AGED 38 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR, VIA.UPPALA, KASARGODE.
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AGED 36 YEARS W/O.ABDULLA ULLIGAM,ULLIGAM HOUSE, P.O.UJJAR, VIA.ARIKKAD, KASARGODE.
ADDL.A9 MOHAMMED RAFEEQ, AGED 34 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR VIA, UPPALA, KASARGODE.
ADDL.A10 FAREEDH A., AGED 31 YEARS S/O.LATE ABDULLA KUNHI, ZEENATH MANZIL, P.O.BEKUR, VIA.UPPALA, KASARGODE.
BY ADVS. SRI.K.I.MAYANKUTTY MATHER SRI.P.RAHUL
RESPONDENTS/RESPONDENTS/PLAINTIFF AND DEFENDANTS 1 TO 7:
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8 FATHIMATH SUHRA MALI HOUSE,MUGU VILLAGE ,KASARGODE, REPRESENTED BY NEXT FRIEND-NAFEESA .
ADDL.R9 MOHAMMED FAROOK, AGED 46 YEARS, S/O.LATE ABDULLA KUNHI, 197/1, DAWOOD BAI FASAL BAI, ROOM NO.9, 1ST FLOOR, DONGRI, MUMBAI-400 009.
ADDL.R10 MOHEEDEEN ASHRAF, AGED 45 YEARS, S/O.LATE ABDULLA KUNHI, 197/1, DAWOOD BAI FASAL BAI, ROOM NO.9, 1ST FLOOR DONGRI,MUMBAI-400 009.
*(ADDL.APPELLANTS 2 TO 10 AND ADDL.RESPONDENTS 9 AND 10 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED SOLE APPELLANT AS PER ORDER DATED 05.06.2020 IN IA.770/2018.)
BY ADV SRI.K.G.GOURI SANKAR RAI FOR R1 TO R8
THIS REGULAR SECOND APPEAL HAVING BEEN HEARD ON 26.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
This Regular Second Appeal arises from the judgment and decree of the Additional Munsiff's Court, Kasargod in O.S. No.275 of 2006.
2.1 The plaint schedule property is 50 cents and 20.3 square meters
of land in Re-survey No.20/2 of Kubanoor Village in Kasargod Taluk. The plaint schedule property originally belonged to deceased Seedi Beary, the father of the plaintiff. On the death of Seedi Beary, the plaint schedule property devolved upon his wife and children, including the plaintiff. The legal representatives left behind by Seedi Beary are his deceased wife Kaijamma, his daughter deceased Asiamma, plaintiff, Mammu Beary, Mariyamma, Zainaba and one Abdul Rahiman. Defendants 1 to 3 are the children of deceased Asiamma. Defendant No.8 purchased the right in respect of the share of plaintiff's mother Kaijamma, brothers Mammu Beary and Abdulrahiman, sisters Mariyamma and Zainaba in the plaint Schedule property. The plaintiff and Asiamma were not parties to the sale deed stated to have been executed in favour of defendant No.8. The plaintiff claims that himself and the defendants are in joint possession and enjoyment of the plaint 'A' schedule property. The plaintiff has 14/72 shares, defendants 1 to 7 together are entitled to 7/72 shares, and defendant No.8 has 51/72
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shares in the plaint 'A' schedule property. There are two tiled buildings on the property. Coconut trees, mango trees, jack trees etc. are planted in the property. According to the plaintiff, he has been taking yield from the property, but defendant No.8 made an attempt to cut and remove trees from the plaint Schedule property which he prevented. The plaintiff demanded partition of the plaint Schedule property, but defendant No.8 is not ready and willing to effect partition.
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the exclusive possession to the knowledge of the plaintiff and Asiamma. Defendant No.8 further pleaded that a week after the execution of the sale deed, the plaintiff and Asiamma approached him demanding share in the plaint Schedule property, but he refused. Thereafter, they never claimed any right over the plaint 'A' schedule property. Defendant No.8 has been enjoying the plaint 'A' schedule property openly, peacefully, continuously and uninterruptedly since 1969 as an absolute owner to the knowledge of all, including the plaintiff and his sister Asiamma. Defendant No.8 has perfected title over 'A' schedule property by way of adverse possession and ouster. The right, if any, the plaintiff had over the plaint schedule property has been lost by limitation and ouster. Defendant No.8 also pleaded that the suit is bad for partial partition and non-joinder of necessary parties.
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he acquired by way of Ext.A1 title deed. The Trial Court also declared that the plaintiff and defendants 1 to 7 are entitled to future mesne profit.
(a) Is not the claim of the plaintiff for partition of the suit property barred by adverse possession and limitation? Whether gravity of plea and proof regarding ouster can be pressed into service to repel the plea of the appellant who is not a co-owner.
(b) Is not the suit filed by the plaintiff hit by the rule of partial partition.?
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Mather assisted by Adv.Narayani Harikrishnan.
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plaintiff in respect of the plaint Schedule property.
“if a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.”
Council settled the concept of the adverse possession as thus:
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitations applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. "
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SC 1165) a three Judge Bench of the Apex Court upheld the principles declared in Perry v Clissold (supra).
22 . In a case of adverse possession of land, possession must be adequate in continuity, in publicity and in extent to show that the possession is adverse to the true owner. The possession must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession.
23 . In Karnataka Board of Wakf v. Government of India & Others [(2004) 10 SCC 779] , the Apex Court had an opportunity to consider the nature and acts amounting to adverse possession and held thus:
“Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.”
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SCC 59] , while dealing with the concept of adverse possession, the Honourable
Apex Court held thus:
“Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
25 . In Uttam Chand (dead) through LRs v Nathu Ram (dead) through
LRs & Ors [2020 SCC Online SC 37] , the Apex Court reiterated that only having
long continuous possession is not enough to perfect title by adverse possession and all other ingredients like possession that is hostile, exclusive, uninterrupted, etc., are also necessary.
open assertion of hostile title coupled with exclusive possession and
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enjoyment to the knowledge of the plaintiff, who is the other co-owner.
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the suit is bad for non-joinder of necessary parties will not stand.
Substantial questions of law are answered, accordingly, against the appellant and the regular second appeal is dismissed. The parties are directed to bear their respective costs.
Sd/-
K.BABU JUDGE
SVP
3 issues framed by the court
Whether the claim for partition is barred by adverse possession and limitation?
Whether the suit is barred by the rule of partial partition?
Whether the suit is bad for non-joinder of necessary parties?
Colour shows how this judgement treated each authority
Perry v ClissoldExplained¶89
Perry v Clissold [(1907) A.C. 73]
Nair Service Society Ltd. V Rev. Father K.C. AlexanderExplained¶94
Nair Service Society Ltd. V Rev. Father K.C. Alexander (AIR 1968 SC 1165) · Who else cites this
Karnataka Board of Wakf v. Government of India & OthersExplained¶96
Karnataka Board of Wakf v. Government of India & Others [(2004) 10 SCC 779] · Who else cites this
P.T. Munichikkanna Reddy & Others v. Revamma & OrsExplained¶101
P.T. Munichikkanna Reddy & Others v. Revamma & Ors [(2007) 6 SCC 59] · Who else cites this
Uttam Chand (dead) through LRs v Nathu Ram (dead) through LRs & OrsExplained¶106
Uttam Chand (dead) through LRs v Nathu Ram (dead) through LRs & Ors [2020 SCC Online SC 37] · Who else cites this
Gopalan V. VasuDistinguished¶114
Gopalan V. Vasu (1986 KLT 1100)
P.K.ABDULLAKUNHI Legal Heirs (Respondent/Plaintiff)
Defendant No.8
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
