Dismissed

Abdul Hameed Rawther v. Basheer

Kerala HC12 Apr 2024RSA/1082/2015

Case brief

AI extract

What is this about?

The High Court held that the High Court can consider claims of ownership and adverse possession together without contradiction. The non-framing of a specific issue on adverse possession was deemed fatal only if it caused prejudice. The submission was clearly pleaded and evidence was led, so no prejudice existed. Consequently, the Second Appeal was dismissed.

What did the court decide?

The regular second appeal was dismissed, and parties were directed to bear their respective costs.

Abdul Hameed Rawther Vs Basheer — Property and Title | Kerala HC (2024)

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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 C.PRATHEEP KUMAR

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FRIDAY, THE 12^TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 RSA NO. 1082 OF 2015

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AGAINST THE JUDGMENT DATED 9.6.2015 IN AS NO.50 OF 2009 OF DISTRICT COURT,PATHANAMTHITTA ARISING OUT OF THE JUDGMENT DATED 31.1.2009 IN OS NO.500 OF 2005 OF MUNSIFF COURT,PATHANAMTHITTA

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APPELLANT/APPELLANT/PLAINTIFF:

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ABDUL HAMEED RAWTHER

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S/O MYTHEEN PICHA RAWTHER, AGED 72 YEARS, KALARNILKKUNNATHIL HOUSE,MANGARAM MURI & VILLAGE, KONNI, PATHANAMTHITTA DIST

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BY ADVS. SRI.T.K.BIJU (MANJINIKARA) SMT.ANNIE M.ABRAHAM

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RESPONDENTS/RESPONDENTS/DEFENDANTS:

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1 BASHEER

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KALARNIKKUNNATHIL HOUSE, MANGARAM MURI & VILLAGE,KONNI, PRESENTLY AT PARAYIRIKKUNNATHIL VEEDU,PANDALAM MURI & VILLAGE, PATHANAMTHITTA DISTRICT-689 501

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2 ALIF BASHEER

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KALARNIKKUNNATHIL HOUSE, MANGARAM MURI & VILLAGE, KONNI, PRESENTLY AT PARAYIRIKKUNNATHIL VEEDU, PANDALAM MURI & VILLAGE, PATHANAMTHITTA DISTRICT-689 501

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3 KAMARUDHEEN THENGUMMOODU, PEEDIKAYIL, KONNI, NOW AT KALARNIKKUNATHIL HOUSE, MANGARAM MURI & VILLAGE, KONNI, PATHANAMTHITTA DISTRICT-689 691

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BY ADVS. SRI.JACOB P.ALEX SRI.JOSEPH P.ALEX MANU SANKAR P.(K/000823/2018) AMAL AMIR ALI(K/000773/2019)

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALL HEARD ON 4.4.2024, THE COURT ON 12.04.2024 DELIVERED THE FOLLOWING:

RSA.1082/2015

'CR'

J U D G M E N T

Dated this the 12^th day of April, 2024

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This second appeal has been preferred by the appellant in AS No.50 of 2009 on the file of the District Judge, Pathanamthitta, who is the plaintiff in O.S.No.500 of 2005 on the file of the Munsiff Court Pathanamthitta, against the judgment dated 9.6.2015 dismissing the above appeal.

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The appellant filed the above suit for declaration of title, fixation of boundaries, recovery of possession and injunction. The case of the appellant is that he obtained plaint schedule item No.1 property consisting of 12 cents comprised in Sy No.384/16 of Konni Village as per Exhibit A1 partition deed No.525/1956 and item No.2, six cents and more property comprised in the very same Survey number as per Exhibit A2 Sale Deed No.2719/77. Though

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as per Exhibit A2, he had purchased 12 cents, the remaining six cents was re-conveyed to the seller and as such he is in absolute possession and enjoyment of 18 cents of property. The 1^st respondent is the nephew of the appellant. The 2^nd respondent is the

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son of the 1^st respondent. The 3^rd respondent is the intending purchaser of the above property from respondents 1 and 2. As per Exhibit A1 partition deed, the appellant's brother, namely the father of the 1^st defendant obtained six cents of property and the same was settled by him in favour of the 1^st respondent as per Exhibit A3 settlement deed No.2141/1991. Subsequently, as per Exhibit A4 settlement deed No.483/2005, the 1^st respondent settled the above property in favour of the 2^nd respondent. However, in Exhibit A4, the extent of the property is shown as 10.500 cents, instead of 6 cents.

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According to the appellant, there was no clear demarcating boundaries separating the plaint schedule item Nos.1 and 2 properties. In the year 2000, the respondents 1 and 2 brought a lorry load of granite into the plaint schedule item No.1 property with the permission of the appellant, on the guise of renovating the residential building. Thereafter, they have arranged the granite inside the plaint schedule item No.1 property in line and thereafter claimed right over a portion of plaint schedule item No.1 property lying on the southern side of the above granite wall, forcefully taken

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possession of the above portion and attempted to alienate their property including the above portion. The above portion of appellants property annexed by the respondents having an extent of 4¹ /2 cents is scheduled as item No.3. In the suit the appellant sought for declaration of title over the plaint schedule item No.3, fixation of boundary of the appellant's property, recovery of possession of item No.3 property as well as a prohibitory injunction.

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The Trial Court found that the defendants constructed a residential building and started residing therein inside the plaint schedule item No.3 property since the year 1973-74 and perfected their title over the above property by adverse possession and limitation and thereby dismissed the suit. The First Appellate Court confirmed the above finding of the trial court. Aggrieved by the above concurrent findings of the trial court as well as the First Appellate Court, the plaintiff in the suit preferred this second appeal raising various grounds.

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As argued by the learned counsel for the respondents, the jurisdiction of the High Court to decide the Second Appeal is confined only to substantial questions of law and the High Court

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cannot interfere with the concurrent findings on questions of fact. ( Syeda Rahimunnisa v. Malan Bi (dead) by legal representatives and another [(2016) 10 SCC 315] and Ramathal and Ors v. K. Rajamani (Dead) through LRs and Ors [AIR 2023 SC 3978].

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At the time of admission, this Court formulated certain substantial questions of law. However, at the time of arguments, after hearing both sides, this Court found it necessary to reformulate the questions of law involved in the case as follows:

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Whether the defendants/respondents can claim title as well as prescriptive title at the same time?

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2.Whether the trial court was justified in finding that the appellant lost title over item No.3 property by adverse possession and limitation, without framing a specific issue in that respect?

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Whether the First Appellate Court was justified in dismissing the amendment application (IA. No.303/2015)?

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Heard both sides on the above re-formulated questions of law, extensively.

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The trial court as well as the First Appellate Court found

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that the defendants are in exclusive possession and enjoyment of plaint schedule item No.3 property consisting of 4.50 cents along with another six cents, having a total extent of 10.500 cents, constructed a residential building therein as early as in the year 1973-74 and ever since thereafter they are residing therein. The trial court as well as the First Appellate Court found that the appellant lost title over the plaint schedule item No.3 property by adverse possession and limitation and that the respondents 1 and 2 have acquired prescriptive title over the above property.

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It was argued by the learned counsel for the appellant that the respondents have claimed title over plaint schedule item No.3 property and at the same time they have also claimed prescriptive title over the very same property. Therefore, it was further argued that the conduct of the respondents in taking two contradictory contentions cannot be entertained.

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On the other hand, the learned counsel for the respondent would argue that they have claimed ownership only over six cents of property and that with respect to item No.3 property, they have

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claimed only prescriptive title and as such their claim is not at all contradictory to each other. He would further argue that the respondents started enjoying the plaint schedule item No.3 property adverse to the interest of the appellant continuously and uninterruptedly as of right since 1986 and as such by the time the suit was filed in the year 2005 they have acquired prescriptive title over the above property. He would further argue that even if it is assumed that they have claimed right of ownership as well as prescriptive title over the same property, it is not barred under law.

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In Exhibit A4 Settlement Deed in favour of the 2^nd respondent, though the total extent of property is mentioned as 10.500 cents, it is specifically stated therein that as per prior deeds, they had obtained only six cents and as per the re-survey records, the extent of property is 10¹ /2 cents.

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In the written statement, the respondents have contended that there were two streams passing through southern and western boundaries of their property and a portion of the same was annexed to their property and as per re-survey records, the extent of property in their possession is 4.30 Ares. From the above description of

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property given in Exhibit A4 as well as written statement, it can be seen that over the plaint schedule item No.3 property, the defendants are claiming only prescriptive title and not jenmam right.

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In the decision in Kerala State and Ors v. Brijit and Others. [2018 (2) KHC 521], a Single Bench of this Court held that there is nothing wrong for a party to claim title and in the alternative prescriptive title by adverse possession and limitation. In paragraph 54, the learned Single Judge held that:

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54. ….... ….. …... Exclusive possession of the thing owned and the right to exclude others from possession are two essential components in the bundle of rights called “title” or “ownership”. In other words, every owner has a right to possess property in exclusion of all the others. Every person holding property under a claim of adverse possession keeps possession of the same with a hostile animus to exclude all others, including the true owner. Therefore, both in a claim of ownership and adverse possession, assertive possession is an essential component. In the case of a person claiming adverse title by prescription, he must have been holding possession with an open hostile animus for the prescribed period. Therefore, I find no reason to think that there is any impediment in claiming ownership of property and in the alternative, a

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prescriptive title to it by adverse possession and limitation.”

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In the light of the above decision, it can be held that even if a person claims ownership over a property along with prescriptive title in the alternative, the claim is sustainable. On the other hand, in this case, as I have noted above, no such rival contentions were raised by the respondents.

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The next substantial question of law which arose for consideration is, whether the omission of the trial court to frame a specific issue regarding the respondents' claim of adverse possession and limitation over plaint schedule item No.3 property is fatal in the facts of this case? It is true that the trial court has not raised any specific issue with regard to the claim of respondents that they have acquired prescriptive title over item No.3 property by adverse possession and limitation. However, in the written statement, they have raised specific pleadings to that effect. In the judgment of the trial court, there is specific finding to the effect that the respondents have acquired prescriptive title over plaint schedule item No.3 property by adverse possession and limitation.

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On a perusal of the evidence adduced by both sides, it can

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be seen that the appellant was well aware of the above contention raised by the respondents in their written statement. The parties have also adduced evidence supporting and opposing the above claim of the respondents. In the memorandum of appeal filed before the First Appellate Court as well as before this Court, the appellant has not raised any specific contention that failure of the trial court in framing such an issue has caused any prejudice to him. In the facts and circumstances of this case, it can be seen that the omission to frame a specific issue in that respect has not in any way caused any prejudice to the appellant. On the other hand, both parties had sufficient knowledge about the above issue and adduced evidence covering that issue also.

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In the decision in Sayeda Akhtar v. Abdul Ahad [(2003) 7 SCC 52], the Hon'ble Supreme Court held that if the parties were well familiar with the existence of an issue, evidence was adduced on that issue and no prejudice was caused to the parties, failure to frame an issue is not fatal.

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In the decision in Ram Sahu (Dead) Through Lrs and Ors. vs. Vinod Kumar Rawat [(2021) 13 SCC 1] also the Hon'ble

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Supreme Court has dealt with the failure of the trial court to frame specific issue and its consequence. The Hon'ble Supreme Court in

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paragraph 11.1 of the above judgment held as follows:

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11.1. Even otherwise non-framing of the issue with respect to possession would have no bearing and/or it fades into insignificance. It is required to be noted that there were necessary pleadings with respect to possession in the plaint as well as in the written statement. Even the parties also led the evidence on the possession. The original plaintiff – appellant herein led the evidence with supporting documents to show his possession and to that, there was no cross-examination by the defendants – respondents. The defendants- respondents did not lead any evidence to show their possession. Therefore, the parties were aware of the rival cases. On a holistic and comprehensive reading of the pleadings and the deposition of PW1 and PW2, it is unescapable that the plaintiff had intendedly, directly and unequivocally raised in its pleadings the question of possession. As observed hereinabove even in the written statement, the defendants also made an averment with respect to possession. Thus neither prejudice was caused nor the proceedings can be said to have been vitiated for want of framing the issue. As observed and held by this Court in the case of Sri Gangai Vinayagar Temple Vs. Meenakshi Ammal and Others (Supra), if the parties are aware of the rival cases, the failure to formally formulate the issue fades into insignificance when an extensive evidence has been recorded without any demur. Even the observations made by the High Court that there was no issue with respect to possession before the Learned Trial Court and/or even before the High Court is not correct. As observed hereinabove in the pleadings in the plaint and

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even in the written statement filed by the defendants, there were necessary averments with respect to possession. Even the parties also led the evidence on possession.

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In the decision in Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and Ors [(2005) 10SCC 51] , the Hon'ble Supreme Court held that:

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“If the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case, without establishing prejudice, it would not be open to a party to raise the question of non-framing of a particular issue.”

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A similar view was taken by the Apex Court in Gulf Oil Corporation Ltd. v. The State of Telangana and Ors.

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[MANU/SC/1155/2022]. From the above decisions also it can be seen that if the parties were aware of the issues and evidence was adduced on the issue and if no prejudice is caused, failure to frame specific issue is not fatal.

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It was argued by learned counsel for the appellant that there was no clear and demarcating boundaries separating the properties of appellant and respondents and as such it was not possible for the respondent to claim prescriptive title by adverse

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possession and limitation. He would also argue that both parties obtained respective properties from a common ancestor and as such the respondents are disentitled from claiming prescriptive title over item No.3 property by adverse possession and limitation. He has also relied on certain decisions in support of his above argument.

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In the decision in Annasaheb Bapusaheb Patil and Others v. Balwant alias Balasaheb Babusaheb Patil (dead) by

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LRs and heirs [1995 KHC 799], relied upon by learned counsel for the appellant, the Hon'ble Supreme Court held that:

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“13.Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another, does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”

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In support of the argument that alternate pleas cannot be

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raised in a suit claiming adverse possession, the learned counsel for

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the appellant relied upon the decision in Chandramathy C.S. and others v. Devakey Amma and Others [2010 (4) KHC 383]. In the above decision, the defendants canvassed permissive possession on the basis of an oral agreement of sale. In the above context, the Court held that permissive possession is not at all adverse and limitation does not commence until possession become adverse. The defendants have not stated as to when permissive possession became adverse to the real owner. It was in the above context, the court held that the plea based on title and adverse possession are inconsistent with each other.

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In the decision in Valsalan and Others v. Sivadas and

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Others [2021 KHC 5375], in a suit for partition, one of the coowners claimed adverse possession against the other. In the said decision, in paragraph 11, the Single Judge held that:

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“11. It is well-settled law that in order to establish adverse possession against one co-owner as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profit, of the properties. Ouster of nonpossessing co-owner by the co-owner in possession who claims his possession to be adverse, should be made out. The possession of one co-owner is considered in law, as

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possession of all the co-owners. When one co-owner is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-owner in possession cannot render his possession adverse to the other co-owner not in possession merely by secret hostile animus on his own part in derogation of the other co-owner's title. It is settled rule of law that as between co-owners, there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.”

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The law is well settled that the plea of adverse possession can be raised only against the property owned by another person against whom he asserts possession adverse to the title of the other

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( Raghavan v. Devayani [2024 (2) KHC 417] and Shri Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs. and Others [2020 KHC 6034]) .

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The ingredients necessary to claim prescriptive title by adverse possession and limitation was summarised by the Hon'ble Supreme Court in the decision in Ravinder Kaur Grewal and

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Others v. Manjit Kaur and Others [AIR 2019 SC 3827]. In paragraph 57, the Hon'ble Supreme Court held that:

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“57. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec-vi i.e. adequate in continuity, nec-clam i.e., adequate in publicity and nec-precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonym with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. Possessor looks after the property, protects it and in case of agricultural property by and the large concept is that actual tiller should own the land who works by dint of his hard labour and makes the land cultivable. The legislature in various States confers rights based on possession.”

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In the instant case, the appellant and the respondents obtained their property from a common ancestor. However, the properties were partitioned as per Exhibit A1 partition deed as early as in the year 1956. On partition, their respective shares have crystallized and thereafter they are not co-owners. Therefore, the

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contention of the appellant that possession of plaint schedule item No.3 property by the respondents is not hostile to the ownership of the appellant cannot hold good.

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From Exhibit X1 and X2 Building Tax Assessment Register, it is proved that since the year 1973-74, there is a residential building in respondents' property. From Exhibit C1 Commission report and C1(b) sketch, it can be seen that the southern boundary of the appellant's property passes through the middle portion of the residential building, in which the respondents are residing. Though during the cross examination, DW1 stated that after the execution of Exhibit A4, the residential building was extended using sheet, the exact location of the above extension was not brought out in evidence.

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On the other hand, from Exhibit X1 and X2, it is revealed that there was a residential building having three rooms since the year 1973-74 in existence in which the respondents, in continuation of their predecessor, were residing. DW4, the local Panchayat Member, had deposed that about 20 years before date of his examination on 24.1.2009, he had interfered in the dispute between

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the appellant and respondents, that he had demarcated the boundary between their properties in between the respective residential buildings and that, along that boundary the respondents have constructed a compound wall. The above evidence of DW4 is not seen challenged during the cross examination.

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In the plaint, the appellant admitted the existence of a granite wall along the northern side of the existing residential building occupied by the respondents. According to them, it was constructed by the respondents in the year 2000. However, from the evidence of DW4, it is revealed that the said compound wall was constructed about 20 years before the date of his examination on 24.1.2009. The above evidence of DW4, which remains unchallenged, substantiates the contention of the respondents that they have been in exclusive possession and enjoyment of plaint Schedule item No.3 property by constructing a residential building therein since the year 1973-74 and that they were in hostile possession of the said property since 1986.

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In the above circumstances, the finding of the trial court and the First Appellate Court that the appellant lost his title over the

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plait schedule item No.3 property by adverse possession and limitation and also that the respondents acquired prescriptive title over the said property is perfectly valid. I do not find any irregularity or illegality in the above finding, so as to call for any interference.

¶121

Before the First Appellate Court, the plaintiffs filed I.A. No.303/2015 for amending the plaint, to correct the extent of property in the possession of the plaintiff from 18 to 19 cents. After hearing both sides, the First Appellate Court dismissed the above amendment application. The scope of amendment under Order VI Rule 17 of Code of Civil Procedure was elaborately discussed and enumerated by the Hon'ble Supreme Court in Life Insurance Corporation of India v. Sanjeev Builders Private Limited and Another [2022 (5) KLT OnLine 1119 (SC)] .

¶122

The specific case of the appellant is that as per Exhibit A1 partition deed he had obtained 12 cents of property and another 12 cents of property was obtained from his brother as per Exhibit A2 sale deed. According to him, out of the 12 cents purchased from his brother, six cents was re-conveyed to his brother. Therefore, according to the plaintiff, the balance property available with him is

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only 18 cents. In the above circumstances, the First Appellate Court was justified in dismissing the application to amend the plaint to correct the extent of his property from 18 cents to 19 cents.

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As I have already noted above, the failure to raise a specific issue regarding adverse possession and limitation has not in any way prejudiced the appellant. The respondents also have not claimed title over item No.3 property along with prescriptive title and as such the findings on questions of laws 1 and 2 does not in any way affect the decisions of the trial court and First Appellate Court.

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In the light of the findings on substantial questions of law discussed above, it can be seen that there is no irregularity or illegality in the impugned judgment of the First Appellate Court in AS. No.50 of 2009 and as such the Regular Second Appeal is liable to be dismissed.

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In the result, the RSA is dismissed. Considering the facts, I direct the parties to bear their respective costs.

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Sd/C. PRATHEEP KUMAR, JUDGE

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sou.

Abdul Hameed Rawther v. Basheer

Case brief

What is this about?

What did the court decide?

Abdul Hameed Rawther v. Basheer

Case brief

What is this about?

What did the court decide?

What the court decided

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