Second appeal against reversal of a suit dismissal: plaintiff sought recovery of possession based on title; defendant pleaded adverse possession from 1966. The High Court held the defendant failed to prove consistent hostile animus, affirmed the first appellate court's decree for recovery of possession with injunction and dismissed the appeal.
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 A. BADHARUDEEN
TUESDAY, THE 5TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945
RSA NO. 347 OF 2019
AGAINST THE DECREE AND JUDGMENT IN A.S.NO.110/2011 OF DISTRICT
COURT, ALAPPUZHA ARISING FROM THE DECREE AND JUDGMENT IN O.S.NO.
726/2009 OF ADDITIONAL MUNSIFF COURT, ALAPPUZHA
APPELLANT/RESPONDENT/DEFENDANT:
RAGHAVAN,
S/O.VELU, VADAKKEVELI, NORTH ARYAD MURI, KOMALAPURAM
VILLAGE, ALAPPUZHA-688 538.
BY ADV R.AZAD BABU
RESPONDENT/APPELLANT/PLAINTIFF:
DEVAYANI,
W/O. DHANANJAYAN, VADAKKEVELI, NORTH ARYAD MURI,
KOMALAPURAM VILLAGE, ALAPPUZHA -688 538
BY ADVS.
SRI.K.S.HARIHARAPUTHRAN
SMT.BHANU THILAK
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
27.02.2024, THE COURT ON 5.3.2024 DELIVERED THE FOLLOWING:
RSA NO. 347 OF 2019 2
CR
JUDGMENT
Dated this the 5th day of March, 2024
This Regular Second Appeal has been filed by the appellant against the judgment and decree in A.S.No.110/2011 on the files of the District Court, Alappuzha, arose out of the judgment and decree in O.S.No.726/2009 on the files of the Additional Munsiff Court, Alappuzha. The appellant herein is the defendant in the above suit. The plaintiff is the sole respondent herein.
(i) Did not the plaintiff have the duty to give oral evidence when the dispute was whether plaint item no.2 property was part of the property of the plaintiff or the property of the defendant?
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(ii) Was it proper to decree the suit, rejecting the claim of the defendant that he had perfected title by the law of limitation and adverse possession, on the sole ground that the defendant was paying tax in the name of the plaintiff?
(iii) When the defendant contended that he had no intention to sell any property, was it correct to grant the relief of injunction in a case where the plaintiff did not enter the witness-box to speak to the cause of action?
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the written statement are extracted hereunder:
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open, hostile and continuous. The plaintiff has, after 1966, never exercised any act of possession or enjoyment of the same. All these years the defendant who is paying land tax. When resurvey was finalized in the year 1994 the plaint scheduled property was included in the T.P. Account No.3224 of the defendant and he is paying land tax for 18.80 Ares of land equivalent to 46.436 cents comprised in Re-Sy. No.331/12 in block No.3 of Komalapuram Village in the name of the defendant. The plaintiff has never objected to the resurvey proceedings by which the plaint scheduled property was mutated in the name of the defendant and included in his T.P. Account.
3. The plaintiff has lost the title if any she had over the plaint scheduled property because of the long, hostile and uninterrupted possession of the plaint scheduled property by the defendant who had perfected his title by adverse possession and limitation.”
of the defendant. Exts.C1, C1(a) and C1(b) were also marked.
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Finally, the learned Munsiff dismissed the suit, holding that the defendant had perfected title over the plaint schedule property by adverse possession and limitation.
“2) O.S No.726/2009 is decreed as below:-
appellate court, and to restore the verdict of the trial court, the
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learned counsel for the appellant/defendant argued that, in the written statement, the defendant raised specific contention to perfect title by adverse possession over the plaint schedule property starting from 1966 onwards and in the said case, the plaintiff did not mount the box to give evidence to prove her possession. Therefore, the trial court rightly found adverse possession in favour of the defendant and dismissed the suit. Accordingly, it is argued that reversal of the said verdict by the first appellate court, without adverting the pleadings and evidence, would require interference, by answering the substantial questions of law.
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adverse possession. It is submitted that in such a case, merely because the plaintiff failed to adduce oral evidence, the plaintiff could not be non suited. According to the learned counsel for the plaintiff, the title of the plaintiff could not be defeated at all and it is the duty of the defendant who pleads adverse possession to establish the same after pleading the essentials for the same and to adduce evidence to support the said plea.
“ In the matter of adverse possession, the courts have to find out the plea taken by the plaintiff in the plaint. In the plaint, the plaintiff who claims to be owner by adverse possession has to plead actual possession. He has to plead the period and the date from which he claims to be in possession. The plaintiff has to plead and prove that his possession was continuous, exclusive and undisturbed to the knowledge of the real owner of the land. He has to show a hostile title. He has to communicate his hostility to the real owner.”
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The learned counsel placed another decision in Ram Nagina Rai and Another v. Deo Kumar Rai (deceased) by LRs and Another reported in [2019 KHC 7372] . In the said decision, it was held as under:
“Art.65 of the Schedule of the Limitation Act, 1963, viz., 12 years, is applicable in the matter to file a suit for possession of immovable property based on title. The limitation of 12 years begins when the possession of the defendants would become adverse to that of the plaintiffs. Thus, it is incumbent on the plaintiffs to file a suit for possession within 12 years from when the possession of the defendants becomes adverse to the plaintiffs. Art.65 presupposes that the limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts,
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which must be ascertained from the facts and circumstances of each case. It is needless to observe that where the possession can be referred to a lawful title, it would not be considered to be adverse, the reason being that the person whose possession can be drawn to a lawful title, will not be permitted to show that his possession was hostile to another's title. Simply put, one who holds possession on behalf of another, does not by mere denial of the other's title, make his possession adverse so as to give himself the benefit of the statute of limitation.”
The learned counsel also placed reliance on the decision in Shri Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs . and Others reported in [2020 KHC 6034]. In the said decision, it was held as follows:
“13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them:
"24. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession
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of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owners." (See Vidya Devi v. Prem Prakash [(1995) 4 SCC 496], SCC p.504, para 24.)
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession:
"14. ... Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Art.65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding
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whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. ...
15. Where possession can 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
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all. (See Annasaheb Bapusaheb Patil v. Balwant [(1995) 2 SCC 543, p.554 : AIR 1995 SC 895, p.902], SCC p.554, paras 1415.)"
12. In Kurella Naga Druva Vudaya Bhaskara Rao, the payment of tax receipts and mere possession for some years was found insufficient to claim adverse possession. It was held that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff's title will not be sufficient.
Again in Shri Uttam Chand ’s case (supra), it was held as under:
"15. Animus possidendi as is well known is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner for the said purpose. The person who claims adverse possession is required to establish the date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession
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and that possession was open and undisturbed. A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law."
Apart from these decisions, two more decisions viz., Narasamma and Others v. A. Krishnappa (Dead) Through LRs. reported in [2020 KHC 6503] and Ravinder Kaur Grewal and Others v. Manjit Kaur and Others reported in [2019 (4) KHC 256], also have been placed by the learned counsel for the plaintiff, in support of his contention.
In Narasamma’ s case (supra), it was held as under:
“The question which confronts us is not the aforesaid, but whether simultaneously a plea can be taken of title and adverse possession, i.e.,
RSA NO. 347 OF 2019 15
whether it would amount to taking contradictory pleas. In this behalf, we may refer to the four judgments cited by learned counsel for the respondent herein, which succinctly set forth the legal position. In Karnataka Board of Wakf (supra) case, it has been clearly set out that a plaintiff filing a title over the property must specifically plead it. When such a plea of adverse possession is projected, it is inherent in the nature of it that someone else is the owner of the property. In that context, it was observed in para 12 that "....the pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. The possession has to be in public and to the knowledge of the true owner as adverse, and this is necessary as a plea of adverse possession seeks to defeat the rights of the true owner. Thus, the law would not be readily accepting of such a case unless a clear and cogent basis has been made out (M. Siddiq (Dead) Through LRs (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors. (supra)). We may also note another judicial pronouncement in Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRs & Anr., 2019 KHC 7372 dealing with a similar factual matrix, i.e., where there is permissive possession given by the owner and the defendant claims that the same had
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become adverse. It was held that it has to be specifically pleaded and proved as to when possession becomes adverse in order for the real owner to lose title 12 years hence from that time. The legal position, thus, stands as evolved against the appellants herein in advancing a plea of title and adverse possession simultaneously and from the same date.”
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licence or permission. Since the concept of adverse possession is nec vi nec clam nec precario, there must in the first instance be actual possession and secondly there must be open hostile animus ; possession required must be adequate in continuity, in publicity and in extent to show that his possession is adverse to the competitor. It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession. Consonant with this principle the commencement of adverse possession in favour of a person, implies that that person is in actual possession, at the time with a notorious hostile claim of exclusive title, to repal which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the requisite animus . The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It must be actual, visible, exclusive, hostile and continued for over the statutory
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period. The hostile character of the possession is gauged by the animus of the person setting up adverse possession. The question of animus is a question of personal equation of the prescriber and not that of the person whose title is sought to be acquired. Thus, where a person was found to be in possession on behalf of another, notwithstanding that the latter admitted the farmer's possession to be on his own account, it could be held that the former's possession was only on the latter's behalf and not adverse to him. The animus of the prescriber alone determines the nature and quantum of the estate that is being prescribed. Adverse possession depends on intention of the occupant to claim and hold the land in opposition to the whole world and also embodies the idea that the owner or persons interested in the property have knowledge of the assertion of ownership by the occupant. Adverse possession consists of actual possession with intent to hold solely by the possessor to the exclusion of all others.
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the property was purchased by the plaintiff. At a later point of time, he stated that the property was purchased in the name of the plaintiff by the defendant. Thereafter, DW1 given evidence that he started possession of the property from the date of purchase i.e., from 1961 onwards, but, in the written statement his case is that, he has been possessing property from 1966 alone. It is specifically pointed out by the learned counsel for the plaintiff that, DW1 given evidence that he had paid tax on behalf of the plaintiff and the same would go to show that the defendant possessed the property for and on behalf of the plaintiff and not adverse to the intent of the plaintiff. Therefore, the learned counsel argued that the first appellate court rightly re-appreciated the evidence while upsetting the finding of the trial court.
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the available evidence to decide the dispute.
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| Description of suit | Period of limitation |
Time from which period begins to run |
|---|---|---|
| 65. For possession of immovable | Twelve | When the possession of |
| property or any interest therein | years | the defendant becomes |
| based on title. | adverse to the plaintiff. | |
| Explanation.—For the purposes of this article— |
||
| (a) where the suit is by a |
||
| remainderman, a reversioner | ||
| (other than a landlord) or a | ||
| devisee, the possession of the | ||
| defendant shall be deemed to | ||
| become adverse only when the | ||
| estate of the remainderman, | ||
| reversioner or devisee, as the | ||
| case may be, falls into possession; | ||
| _(b)_where the suit is by a Hindu | ||
| or Muslim entitled to the | ||
| possession of immovable property |
||
| on the death of a Hindu or | ||
| Muslim female, the possession of | ||
| the defendant shall be deemed to | ||
| become adverse only when the | ||
| female dies; | ||
| (c) where the suit is by a |
||
| purchaser at a sale in execution of a decree when the judgment- |
||
| debtor was out of possession at | ||
| the date of the sale,the |
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purchaser shall be deemed to be a representative of the judgmentdebtor who was out of possession.
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same would go to show that the ownership of the property by the plaintiff is admitted by DW1.
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the first appellate court did not negative the claim of adverse possession by the defendant, not on the sole ground that the defendant was paying tax in the name of the plaintiff, but in consideration of inconsistent versions of the defendant and in the absence of convincing evidence to sustain adverse possession claimed by the defendant.
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is held that the appeal is liable to fail.
All interlocutory orders stand vacated and all interlocutory applications pending in this Regular Second Appeal, stand dismissed.
Registry shall inform this matter to the trial court as well as the appellate court, forthwith.
Sd/- A. BADHARUDEEN JUDGE
Bb
1 issue framed by the court
Whether the defendant perfected title over the plaint schedule property by adverse possession despite inconsistent versions on when hostile possession began.
Colour shows how this judgement treated each authority
Krishnamurthy S. Setlur v. O.V.Narasimha Setty and OthersRelied on¶11
(2007) 3 Supreme Court Cases 569
Ram Nagina Rai and Another v. Deo Kumar Rai (deceased) by LRs and AnotherRelied on¶11
2019 KHC 7372
Shri Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs and OthersRelied on¶12
2020 KHC 6034
Narasamma and Others v. A. Krishnappa (Dead) Through LRs.Relied on¶12
2020 KHC 6503
Ravinder Kaur Grewal and Others v. Manjit Kaur and OthersReferred¶12
2019 (4) KHC 256
1 provisions across 1 enactments
Raghavan
Devayani
A. Badharudeen
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court