Dismissed

Amina v. Yamuna Devi

Kerala HC20 Dec 2023RSA/1306/2016

Case brief

AI extract

What is this about?

In this regular second appeal regarding a suit for title declaration and recovery of possession, the High Court maintained the lower appellate court's decree. The court held the trial court erred in dismissing the suit for lack of property identification and ruled that the claim of adverse possession failed due to insufficient evidence.

What did the court decide?

Appeal dismissed; appellate decree maintained; trial court verdict reversed; interlocutory orders vacated.

Amina Vs Yamuna Devi — Property and Title | Kerala HC (2023)

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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 A. BADHARUDEEN

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WEDNESDAY, THE 20^TH DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945

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RSA NO. 1306 OF 2016

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AGAINST THE JUDGMENT AND DECREE DATED 31.10.2015 IN AS NO. 20/2009

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OF ADDITIONAL DISTRICT COURT-I, MAVELIKKARA AROSE FROM THE

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JUDGMENT AND DECREE DATED 17.12.2008 IN OS 204/2005 OF MUNSIFF COURT, KAYAMKULAM

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APPELLANTS/RESPONDENTS/DEFENDANTS:

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1 AMINA W/O ABUBACKER, SHEEJA SADANAM, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE

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2 SHAJI S/O ABUBACKER, SHEEJA SADANAM, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE

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3 RASHEED SHEEJA SADANAM, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE

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4 SALIM ALIAS RAVI SHEEJA SADANAM, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE

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5 SHEEJA SHEEJA SADANAM, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE

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6 SHEEBA SHEEJA SADANAM, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE

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7 REJI SHEEJA SADANAM, PRAYAR VADAKKUM MURI, PUTHUPPALLY VILLAGE

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BY ADVS. SRI.T.KRISHNANUNNI SR. SRI.K.SHAJ SRI.RENJIT GEORGE

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RSA NO. 1306 OF 2016

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RESPONDENT/APPELLANT/PLAINTIFF:

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YAMUNA DEVI D/O BHARATHI AMMA, VRINDAVANAM, PRAYAR VADASKKUM MUI, PUTHUPALLY VILLAGE

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BY ADVS. SRI.P.VISWANATHAN (SR.) SRI.AJITH VISWANATHAN

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THIS REGULAR SECOND APPEAL HAVING COME UP FOR HEARING ON 15.12.2023, THE COURT ON 20.12.2023 DELIVERED THE FOLLOWING:

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RSA NO. 1306 OF 2016

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JUDGMENT

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Dated this the 20^th day of December, 2023

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This regular second appeal has been filed under

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Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, challenging the decree and judgment dated 31.10.2015 in A.S.No.20/2009 on the files of the Additional District Court-I, Mavelikkara, arose out of the decree and judgment dated 17.12.2008 in O.S.No.204/2005 on the files of the Munsiff's Court, Kayamkulam.

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Heard the learned counsel for the appellants as well as the learned counsel appearing for the respondent. Perused the lower court records.

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I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendants' for convenience.

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At the time of admission, as per order dated

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24.02.2021, my learned predecessor raised the following substantial questions of law.

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RSA NO. 1306 OF 2016

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1. Insofar as the plaintiff pleaded that the predecessor of the defendants was a tenant of their predecessor, does a suit for recovery of possession is maintainable without resorting to Section 106 of the Transfer of Property Act?

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2. Whether the first appellate court was right in holding that the claim of adverse possession cannot be set up without admitting the title of the plaintiff.

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3. Whether the first appellate court was justified in interfering with the finding of the trial court that the plaint schedule property cannot be identified?

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Originally, the plaintiff filed this suit for declaration of title over the plaint schedule property, fixation of boundary and recovery of possession. According to the plaintiff, she obtained the plaint schedule property as per partition deed No.2557/1985 of SRO, Karunagappally and when there was apprehension of trespass upon the plaint schedule property, at the option of the defendants, she filed O.S.No.516/2000.

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Later, the said suit was dismissed and thereafter, a more comprehensive suit was filed by the plaintiff. Defendants 4 and 5 set ex parte by the trial court.

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Defendants 1 to 3, 6 and 7 filed written statement denying title over the shop room in possession of the defendants. According to the defendants, 1.5 cents of property, where the shop room is lying, was in possession and enjoyment of Kochuveettil Karunakaran Pillai even before 1950. In the year 1950, Kochuveetil Karunakaran Pillai sold the property in favour of Mr.Pookkunju, the husband of the first defendant and the father of defendants 2 to 7. Accordingly, Pookkunju obtained title over the said extent of land, including the shop room and he continued title and possession till his death and thereafter, the same was succeeded by the defendants.

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The court below raised necessary issues and tried the matter. PW1 to PW4 examined and Exts.A1 to A9 were marked. DW1 and DW2 examined and Exts.B1 to B11 were

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RSA NO. 1306 OF 2016

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marked. Exts.C1 and C1(a) were marked as court exhibits.

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The court below appreciated the evidence and

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after hearing both sides, dismissed the suit, holding that there is no proper identification of the plaint schedule item.

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On appeal before the Additional District Court,

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Mavelikkara, the learned Additional District Judge reversed the finding and granted decree as under:

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“ In the result, appeal is allowed with costs as follows:

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1. Judgment and decree in O.S.204/05 of Munsiff's Court, Kayamkulam are set aside.

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2. Suit is decreed with costs.

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3. Plaintiff's title over plaint schedule property is declared. She is entitled for a declaration that the land, wherein defendants are conducting business, is part of plaint schedule property and plaintiff is the title holder of said land.

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4. Defendants are directed to surrender vacant possession of said land to the plaintiff within one month from the date of

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this decree. If not, the plaintiff is entitled to get recovery of the same, by execution.

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5. Defendants are restrained by a permanent prohibitory injunction from trespassing upon plaint schedule property and interfering with her possession and enjoyment.

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6. Ext.C1(a) will form part of decree.”

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The main challenge raised by the learned counsel for the defendants, while assailing the verdict of the appellate court in deviation from the trial court, is the inadequacy of Ext.C1 report and Ext.C1(a) plan to identify the plaint schedule property. It is argued by the learned counsel for the defendants that on reading the plaint schedule description, the plaint schedule property is 16 cents of property derived from 23 cents of property in Sy.No. 7540/1 and Sy.No.7313/1-3. More particularly, 8 cents on the Eastern side from 23 cents in Sy.No.7540/1 and 8 cents on the eastern side of 7313/1-3. It is argued that as per Ext.A2

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partition deed, relied on by the plaintiff to assert title over the plaint schedule property, 46 cents of property covered by Ext.A1, the prior title deed, was partitioned and thereby, the eastern 16 cents allotted to the plaintiff - Yamuna Devi and the western 15 cents allotted to Unnikrishnan. In between the property allotted to Yamuna Devi and Unnikrishnan, 15 cents of property allotted to Raveendran Pillai. It is argued by the defendants further that on perusal of Ext.C1(a) plan, the property comprised in Sy.No.859/2 is identified as 16.10 ares equivalent to 39.7 cents. Therefore, the entire extent of 46 cents covered by Exts.A1 and A2 was not either identified or separated before identifying 6.15 ares of property comprised in Sy.No.859/2-3. According to the learned counsel for the defendants, it is because of this serious anomaly, the trial court rightly dismissed the suit for want of identification of property. The learned counsel read out the relevant paragraphs of the trial court judgment while justifying dismissal of the suit by the trial court. That apart, the learned

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RSA NO. 1306 OF 2016 9

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counsel read out paragraph Nos.12 to 18 of the appellate judgment, whereby the learned appellate court reversed the finding of the trial court. According to the learned counsel for the defendants, the appellate court failed to appreciate the facts and evidence involved and thereby wrongly reversed the finding of the learned Munsiff. He also argued that therefore, the trial court judgment is to be justified and the second appeal may be allowed, restoring the trial court judgment. The learned counsel for the defendants also submitted that when the plaintiff asserts title over the plaint schedule property and seeks relief of recovery of possession, it is the bounden duty of the plaintiff to prove the title independently and the weakness of the defence is not a ground to grant the relief.

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The learned counsel for the defendants argued that the entire extent of property covered by Ext.A1 is 46 cents and the same was partitioned as per Ext.A2 in between the siblings of the plaintiff and eastern 16 cents allotted in favour

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of the plaintiff. The learned counsel argued that, in extent, the property is now 39.7 cents (16.10 ares) comprised in Sy.No.859/2, as it could be decipherable from Ext.C1(a) plan itself that on the western and northern sides of the property, public road available and a portion of the property forms part of the road.

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According to the learned counsel for the plaintiff, in the case at hand, the contention raised by the defendants is title over A schedule plot in Ext.C1(a) plan, including the shop room therein, in view of Ext.B1. However, on evidence, it was found by the trial court as well as the appellate court that the property covered by Ext.B1 is a property, situated far away from the plaint schedule items. According to the learned counsel for the plaintiff, the defendants have no property adjacent to the property of the plaintiff and when the defendants failed to prove independent title and also adverse possession otherwise, the title of the plaintiff stands proved and in such view of the matter, the plaintiff is entitled to get

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recovery of possession as granted by the appellate court. Therefore, the appellate court rightly granted decree and the said decree and judgment do not require any interference.

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Coming to the matter in controversy, the 3rd question of law raised by this Court is whether the first appellate court was justified in interfering with the findings of the trial court that the plaint schedule property could not be identified. On perusal of the reasons stated by the learned Munsiff to reject Ext.C1 series, the same is to the effect that the plaint schedule description showed the extent of property as 46 cents. However, Ext.C1(a) plan would show that the total extent as 16.10 ares as 'KLMN' plot and 6.15 ares as 'PQML' plot. But when both plots were taken together, the same would not come to 46 cents. However, the appellate court found that the the trial court is not justified in rejecting Ext.C1 series, on the finding that the commissioner located 16.16 ares of property in Sy.No.859/2 and within the said plot, 16.15 ares of property was located as 'PQLM' plot in Re-

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Sy.No.859/2-3.

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The outset itself, it could be gathered that the observation of the trial court to the effect that when the properties in 'KLMN' plot and 'PQLM' plot are taken together, the same would come to 46 cents is an erroneous understanding of the real matter in issue. It is true that KLMN plot located by the Commissioner in Ext.C1(a) plan would not come to 46 cents covered by Exts.A1 and A2 and the same is less in extent and confined to 39.76 cents. Therefore, the learned counsel for the defendants is right in arguing that the entire extent of 46 cents of property, covered by Ext.A1 and A2, not specifically located in Ext.C1 series. However, the plaintiff specifically asserts title based on Ext.A2 title deed and availability of property as per the resurvey location sketch produced as Ext.A6. Measurement also shown on the basis of re-survey plan on the assertion that re-survey has become final and the resurvey plan attained finality. When Ext.A6 plan is compared with Ext.C1(a) plan, the same tallies

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and there are no anomalies. However, it is clear that in Ext.A6, there is no sub-division as property in Sy.No.859/2-3 and in the foot note of Ext.A6, it has been narrated that the sub-division was not included in the re-survey village records.

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The crucial question to be considered is whether Ext.C1 series is sufficient to identify the plaint schedule properties, to hold that plot A, the disputed item now in possession of the defendants, is one to be recovered at the instance of the plaintiff on the strength of her title. It is discernible that PW1, the Commissioner and PW2, the Surveyor were cross-examined to challenge the veracity of Ext.C1 series. As per the evidence given by PW1 and PW2 and as per Ext.C1(a) plan, the measurement started from the point 'L' which separates the property covered in ReSy.No.859/2 and 859/3 as 'LM' line. As far as 'LM' line is concerned, in Ext.A6 or in Ext.C1(a) plan, there is no dispute. It is true that the property can be identified by measuring the same, either from East to West or West to East. However,

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the Commissioner and the Surveyor, after locating 'LM' line, which is not in dispute, identified 'KLMN' plot in Sy.No.859/2, having an extent of 16.10 ares available at present and the entire property covered by Exts.A1 and A2 and within the said plot, 'PQML' plot, having an extent of 6.15 ares seen located and within the said plot, plot 'A', which is in dispute also lies. In the instant case, the plaintiff is claiming right in respect of 16 cents of property form part of 23 cents property in Sy.No.7540/1 and 7313/1-3, more particularly, 8 cents on the eastern side of 23 cents in Sy.No.7540/1 and 8 cents on the eastern side of property in Sy.No.7313/1-3 on the basis of Ext.A2 partition deed. As per the partition deed, 16 cents property was allotted to the plaintiff on the eastern side of the entire property.

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Insofar as the claim raised by the defendants is concerned, the same is absolute title, based on Ext.B1, over plot A in Ext.C1(a) in the possession of the defendants. On appreciation of the evidence, both courts found that the

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defendants miserably failed to establish title over plot A in Ext.C1(a). It is true that, in a suit for recovery of possession, on the strength of title, it is the duty of the plaintiff to identify the property based on title and to get recovery of possession of the property so identified, on the strength of title. It is true that the trial court dismissed the suit, mainly on misreading the commission report, as already pointed out. However, the evidence available, as already discussed, would show that plot A, located in 'PQML' plot, is absolutely part and parcel of 16 cents of property allotted to the plaintiff and there is no reason to hold that the defendants in any way have title over the same.

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Coming to the first question of law, in this case, the trial court as well as the appellate court negatived the contention raised by the plaintiff that Pookkunju and his legal heirs, who are defendants, are tenants, for want of evidence. In view of the matter, the first question of law regarding want of notice under Section 106 of the Transfer of Property Act

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1882 (hereinafter referred to as TP Act, for convenience), does not arise in this case. Further, the legal position is no more res integra on the point that after termination of tenancy by efflux of time, no notice under Section 106 of the TP Act is necessary and otherwise, filing of suit for eviction itself is notice terminating tenancy.

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Coming to the second question of law, in this case, the defendants raised contention based on Ext.B1 title deed and also raised contention raising plea by adverse possession. However, the title claimed by the defendants on the strength of Ext.B1 was found against and this Court also could not find any illegality regarding the said finding. It is well settled law that in order to perfect title by adverse possession, pleadings with essentials perfecting the same should be there, viz., _nec vi’,nec clam’_ and `nec precario’ , ie. without force, without secrecy and without permission. Therefore, the first mandate to perfect adverse possession is to assert hostile animus after asserting possession over the

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RSA NO. 1306 OF 2016

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same as against the true owner. When those ingredients fail to be pleaded and proved, plea of adverse possession cannot be considered at all. Thus, it appears that the appellate court rightly negatived plea of adverse possession for want of evidence.

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Regarding the third question of law, as I have already pointed out, Ext.C1 report and C1(a) plan emphatically identified the properties covered by Ext.A1 partition deed, particularly, 16 cents allotted to the plaintiff, and therefore, the appellate court rightly found that the plaint schedule property was well identified and the trial court misread Exts.C1 and C1(a) on misunderstanding the facts involved. Therefore, it could not be held that the first appellate court was not justified in interfering with the finding of the trial court that the plaint schedule property could not be identified.

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Thus, on re-appreciation of the available materials at par with the pleadings of the parties, the inevitable

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conclusion is that the appellate court rightly granted decree, reversing the verdict of the trial court. Thus, in this appeal, nothing is established to interfere with the finding of the appellate court in any manner and therefore, the appeal must fail.

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In the result, this regular second appeal stands dismissed.

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All interlocutory orders stand vacated and all interlocutory applications pending in this regular second appeal stand dismissed.

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Registry shall inform this matter to the trial court as well as the appellate court forthwith.

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Sd/-

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A. BADHARUDEEN JUDGE

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nkr

Amina v. Yamuna Devi

Case brief

What is this about?

What did the court decide?

Amina v. Yamuna Devi

Case brief

What is this about?

What did the court decide?

What the court decided

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