IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 1175 of 2006()
1. BHASKARAN, S/O.KUMARAN NAIR,
... Petitioner
2. BABY, D/O.KUMARAN NAIR,
3. VALSALA, D/O.KUMARAN NAIR,
4. RADHAKRISHNAN, S/O.KUMARAN NAIR,
5. CHANDRAN, S/O.KUMARAN NAIR,
6. A.M. MOHAMMADKUNHI, S/O.ANDUKKAI ALIAS
Vs
1. K. ABOOBACKER, S/O.HASSINAR,
... Respondent
2. MOHAMMAD HANEEFA, S/O.MAKKAKADAN KOMAN,
For Petitioner :SRI.D.KRISHNA PRASAD
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :19/02/2007
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A .NO. 1175 OF 2006
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Dated 19th February 2007
J U D G M E N T
Appellants are defendants in O.S.209/1991 on
the file of Munsiff court, Kasargod. First respondent
is the plaintiff and second respondent second
defendant. First respondent filed suit seeking
recovery of possession of plaint schedule properties
from the appellants. According to appellants plaint A
schedule property having an extent of 4.40 acres was
obtained by plaintiff by oral kuzhikanam marupattom
from Kodoth Kunhambu Nair, original landlord and
later under Ext.A1 sale deed dated 21/5/1965 he
purchased the jenmom right also and in Taluk Land
Board proceedings No.763/73 his right over the
property covered under Ext.A1 sale deed was upheld and
appellants have no manner of right or title to the
properties trespassed upon by him and therefore
respondent is entitled to the decree for recovery of
possession sought for.
2. Appellants in their written statement
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disputed the title and contended that they are not
parties to the Taluk Land Board proceedings and that
proceedings is not binding on them and respondent has
only title over 1.65 acres in R.S.No.23/1 of Kolathur
village which consists of vast extent of land. It was
contended that in 1990 when respondent began to claim
right over the properties in the possession of
appellants on the strength of Ext.A1 sale deed, dispute
arose and Ext.B6 settlement was arrived at in the
intervention of mediators whereunder respondent agreed
that he will pay a consideration at the rate of
Rs.3,000/- per acre and appellants will convey the
respective portions in their possession to respondent
therefore respondent is not entitled to a decree for
recovery of possession. It was also contended that
appellants have perfected their title by adverse
possession in respect of properties described in
schedules X, Y and Z in the written statement and at
any rate, respondent is estopped from claiming
recovery of possession from appellants in view of
Ext.B6 agreement.
3. Learned Munsiff on the evidence of PW1 on the
side of respondent and defendants 2 and 1 as Dws.1 and
4 and two witnesses as Dws.2 and 3 and Exts.A1 to A6
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and Exts.B1 to B6 and Exts.C1 and C2, found that
respondent has title to plaint schedule property under
Ext.A1. It was further found that though respondent
claimed title to 4.40 acres under Ext.A1 sale deed,
property available is only 3.27 acres as reported by
the Commissioner under Ext.C1 and demarcated in Ext.C2
plan. It was also found that under Ext.B6 settlement
will not prohibit respondent from getting a decree for
recovery of possession based on the strength of title
and granted a decree in his favour. Appellants
challenged decree and judgment before Sub court,
Kasargod in A.S.14/1999. Learned Sub Judge on re-
appreciation of evidence confirmed the decree and
dismissed the appeal which is challenged in this second
appeal.
4. Learned counsel appearing for appellants was
heard.
5. Learned counsel appearing for appellants
relying on the decisions of Apex court in Commissioner
of Income Tax, Bombay v. Royal Western India Turf Club
Ltd. (AIR 1954 SC 85), Commissioner of Income Tax,
Madras v. Indian Bank Ltd. (AIR 1965 SC 1473) and
Division Bench decision of High Court of Assam in
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Tinsukia Municipal Board & another v. Harikissen Lohia
and others (AIR 1957 Assam 10) argued that Ext.B6
settlement operates against respondent from claiming
recovery of possession as under Ext.B6 he has agreed to
pay consideration of Rs.3,000/- per acre to appellants
and therefore courts below should have found that
respondent was estopped from claiming the decree.
Learned counsel argued that Ext.B6 establish that
appellants are in possession of the property and
though they perfected their title by adverse possession
by the agreement they agreed to sell the property in
favour of respondent for the consideration stipulated
therein and by agreeing for the said settlement,
appellants have given a go by to the claim for title
perfected by adverse possession and therefore
respondent cannot be permitted to seek decree for
recovery of possession as it is barred by principles
of estoppel as provided under Section 115 of Evidence
Act. It was argued that courts below did not properly
appreciate the case and the decree and judgment
warrants interference. It was also argued that though
under Ext.A1 respondent obtained 4.40 acres, Ext.C1
report and Ext.C2 plan show the extent is only less
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and courts below should have been found that plaint
schedule property has not been identified and
therefore the decree is unsustainable.
6. On hearing learned counsel and going through
the judgments of courts below, I do not find any
substantial question of law is involved in the appeal.
Under Ext.A1 respondent purchased the property from its
previous owner Kunhambu Nair. In Taluk Land Board
proceedings Ext.A1 was produced. The right of
respondent was upheld in the proceedings. Title of
Kunhambu Nair to the properties was not disputed. Even
if the oral lease alleged was not proved, under Ext.A1
the title of Kunhambu Nair was assigned to respondent.
Hence respondent has title to the property covered by
Ext.A1. Though under Ext.A1 4.40 acres have been
assigned in favour of respondent, courts below on the
evidence found that total extent available is only
3.27 acres. Respondent was found to be in possession of
only 1.65 acres and appellants are in possession of
balance extent. Having established the title respondent
is entitled to get recovery of possession of the
property in the possession of appellants, unless that
title is not barred or appellants are protected by any
other law or principles of estoppel as pleaded by
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them.
7. Though appellants contended that title of
respondent was barred by adverse possession and
limitation, courts below on the evidence found that
there is no evidence to prove that appellants have
perfected their title by adverse possession. When suit
is for recovery of possession based on strength of
title, respondent need not prove that he has been in
possession of the property within 12 years from the
date of filing of suit. Instead burden is on
appellants to prove that they have been in possession
of the plaint schedule properties for more than 12
years before institution of suit and that too adverse
to the true owner. Courts below following the law as
laid down in A.B.Patil v. B.B.Patil (AIR 1995 SC 895)
rightly found that it is for appellants to prove that
their possession was hostile to the true owner and
appellants failed to prove the same. Courts below on
the evidence found that there is no evidence to prove
that appellants have perfected the title. More over,
Ext.B6 agreement produced by appellants establish that
title of respondent to the properties was admitted by
appellants. In such circumstances, appellants are not
entitled to contend that they have perfected their by
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adverse possession or the title of respondent was
barred by adverse possession.
8. It was argued that in view of Ext.B6
agreement, respondent was estopped from claiming
recovery of possession. Question is whether it is so.
Ext.B6 agreement shows that it was the result of
settlement arrived at by mediators. It recites that
when 4.40 acres belonging to respondent was measured,
it was found that appellants are respectively in
possession of 54 cents, 37 cents and 64 cents and 6.08
cents. It was further recited that appellants would
execute a sale deed in favour of respondent for
consideration of Rs.3,000/- per acre. It also shows
that document is to be executed before 26/12/1990.
Question is whether this would operates as estoppel
against claim of respondent for recovery of possession
on the strength of title. If respondent is not paying
the amount as shown in the agreement, agreement does
not provide for any remedy to appellants. True, it
shows that respondent had agreed to pay value at the
rate of Rs.3,000/- per acre to appellants. Question is
whether by this agreement respondent is barred from
claiming recovery of possession on the strength of his
title. There is nothing in Ext.B6 agreement to
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establish that because of the agreement respondent is
not entitled to seek recovery of possession on the
strength of his title. Ext.B6 will not convey the
title of plaint schedule properties to appellants. It
is not clear from Ext.B6 as to what is the right to be
purchased from appellants by respondent. Appellants
have no title except the factum of right of possession.
Ext.B6 agreement will not prohibit respondent from
seeking decree for recovery of possession on the
strength of his title. As it was found that respondent
has got title and that title is not barred by adverse
possession and appellants have no better title,
respondent is entitled to the decree granted by court
below. I find no substantial question of law is
involved in this appeal.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR,
JUDGE.
uj.