IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 934 of 2003()
1. LISIAMMA JOSEPH, W/O. JOSEPH,
... Petitioner
2. THRESIAMMA D/O. JOSEPH, DO. DO.
3. MATHEW, S/O. JOSEPH, DO. DO.
Vs
1. M.S.JOSEPH @ M.S.JOSE,
... Respondent
2. CHACKO CHACKO, THEKKEVEETTIL
3. CHINNAMMA SEBASTIAN
4. M.S.ABRAHAM, MALIYEPURACKAL, BANK COLONY
5. LISSY VARGHESE, D/O. AVIRA DEVASIA,
6. AMMINI VARKEY D/O. AVIRA DEVASIA,
7. DR.ELAMMA RAJU D/O. AVIRA DEVASIA,
8. SUMI SEBASTIAN D/O. AVIRA DEVASIA,
For Petitioner :SRI.JOHN JOSEPH VETTIKAD
For Respondent :SRI.P.JACOB VARGHESE (SR.)
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/10/2009
O R D E R
THOMAS P JOSEPH, J
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R.S.A.No.934 of 2003
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Dated this 15th day of October 2009
JUDGMENT
The substantial question of law framed for a decision in the
second appeal is whether after finding that the suit property belonged
to the appellants first appellate court was legally correct in holding
that their title is lost by adverse possession and law of limitation
reversing the well reasoned judgment of the trial court?.
2. Plaintiffs are before me challenging the verdict of first
appellate court reversing judgment and decree of the trial court which
allowed recovery of possession of the suit property on the strength of
title. Plaintiffs/appellants claimed that a total extent of 5.54 acres of
nilam belonged to Thressiamma, wife of Mathew as per sale deed
No.3044/1119 M.E and after the death of Thressiamma, her legal heirs
including Marathinal Joseph, husband of appellant No.1 and father of
appellant Nos.2 and 3 executed Ext.A1, settlement deed No.898 of
1962 as per which E schedule therein was allotted to the share of the
said Joseph and others. There was an oral partition between Joseph
and others and accordingly the suit property which is 1.50 acres of
nilam in survey No.218/1/1 was allotted to the said Joseph. He
mortgaged that property to Ouseph Mathan for the sum of Rs.1500/- as
per agreement dated 29-07-1962. Though there was an understanding
that a deed of mortgage will be executed subsequently, that did not
R.S.A.No.934 of 2003 2
happen. Suit property was given in the possession of the mortgagee,
Ouseph Mathan. Respondent No.2 was a party to the agreement.
Later, Ouseph Mathan sub mortgaged the property to Avirah Devassia
(deceased defendant No.1). On the death of Joseph, suit property
devolved on the appellants. They wanted the mortgage over the
property to be redeemed from Avirah Devassia. Defendant No.1
(Avirah Devassia) contended that he has 6.80 acres and virivu of
nilam, the total extent being 9 and odd acres in survey No.217/3
situated within specific boundaries on all sides towards western side of
the 5.50 acres in survey No.218/1/1 including the suit property under
an oral lease from 1120 M.E onwards and while so, its jenm right was
purchased by him as per document No.1139 of 1960 dated 04-08-
1960. It is incorrect to say that the property was sub mortgaged to
him. It is not correct to say that there was mortgage of any portion of
the property comprised in survey No.217/3 in favour of Ouseph
Mathan. Appellants or their predecessors have no right, title or
interest in the 6.80 acres and virivu in survey No.217/3. If at all it is
found that appellants have any right over the property it is lost by
adverse possession of deceased defendant No.1 from 1120M.E on 04-
08-1960 and by the law of limitation. After the death of defendant
No.1, respondent No.1 (supplemental defendant No.8) who is one of his
legal heirs filed written statement taking up similar contentions.
Learned Munsiff framed issues regarding the title claimed by the
R.S.A.No.934 of 2003 3
appellants over the suit property and whether title is lost by adverse
possession and limitation. Answering issues in favour of the appellants,
they were given a decree for recovery of possession of the suit
property. Respondent No.1 took up the matter in appeal. Learned
District Judge concurred with learned Munsiff on the finding regarding
title of appellants but found in favour of respondent No.1 on the plea of
adverse possession and limitation. Accordingly the suit was dismissed.
Hence the second appeal.
3. Learned counsel for appellants contended that finding of
first appellate court regarding adverse possession is misconceived,
incorrect and unsustainable in that there is no plea or evidence that
deceased defendant No.1 or his legal heirs held the suit property with
hostile title against the appellants and their predecessor. Learned
counsel contended that to extinguish title under section 27 of the
Limitation Act, mere length of possession is not sufficient if it is not
accompanied by necessary hostile title to the true owner which
according to the learned counsel is conspicuously absent in this case.
Reliance is placed on the decisions in Sunny Vs. Amaruddin (2004
(1) KLT SN83 page 63), M. Durai Vs. Muthu and Others (2007 (3)
SCC 114), Annakili Vs. A Vedanayagam and Others (2007 (14)
SCC 308), Ramzan Vs. Gafooran (2008 (2) KLT SN 68) and Hemaji
Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan (2008 (4) KLT
357 (SC)). Per contra it is argued by learned senior Advocate for
R.S.A.No.934 of 2003 4
respondent No.1 that evidence on record justified finding of first
appellate court. Even evidence of appellants would show that from
1980 onwards atleast, they have been demanding possession of the
suit property which was negatived by the predecessor in interest of
respondent No.1. According to the learned senior Advocate
requirements to extinguish title under section 27 of the Limitation Act
are brought out in this case and placed reliance on the decision of the
Supreme Court in P.T.Munichikkanna Reddy and Ors Vs.
Revamma and Ors (AIR 2007 SC 1753).
5. So far as title of appellants is concerned, it is contended by
learned senior Advocate for respondent No.1 that concurrent finding
entered by courts below is not correct. Ext.A1 is the settlement deed
executed between Joseph and other legal representatives of
Thressiamma, the original owner of 5.54 acres including the suit
property. Respondent No.1 has not produced any document to prove
title claimed by him. It is true that when the suit is based on title
weakness of the case of respondents is no assistance to the appellant
who should win or loose on the strength or weakness of their case.
Advocate Commissioner inspected the properties with the assistance of
Taluk Surveyor who measured the properties with reference to Ext.A1
and the survey plan. Exts.C1 to C3 are the mahazar, report and plan
prepared by the advocate commissioner. On measurement of the
property it was found that the disputed property, 1.40 acres falls in
R.S.A.No.934 of 2003 5
survey No.218/1/1 while the property over which respondent No.1
claimed title and possession is in survey No.217/3 and is situated on its
north. Commissioner has identified plot ABCDEF as the suit property.
Nothing is brought out to discard Exts.C1 to C3. There is also no contra
evidence. Courts below relying Ext.A1 and Exts.C1 to C3 found that
appellants have title over the property which I find no reason to
interfere being a finding of fact based on evidence.
6. Before going into the issue regarding adverse possession I
shall refer to the decision relied on by learned counsel on either side.
In Sunny Vs. Amaruddin (2004 (1) KLT SN No. 83) it was held,
“One of the important ingredients to claim adverse
possession is that the person who claims adverse
possession must have set up hostile title to the true
owner. A person, merely pleads that he is in possession
of the land by a derivative title from a person who had
no right over the property, cannot claim adverse
possession, unless he pleads that he was holding the
property adverse to the real owner and proves the same
in evidence. He should also show that the possession
animus to the real owner is with the knowledge of the
owner.”
In M. Durai Vs. Muthu and Others (2007 (3) SCC 114) it is held that
when a plea of adverse possession is raised burden is on the person
who claims so to prove that title is lost by adverse possession.
Reference has been made to the decision in Vasantiben Prahladji
R.S.A.No.934 of 2003 6
Nayak Vs. Somnath Muljibhai Nayak (2004 (3) SCC 376) where it
was held,
“‘Animus possidendi’ is one of the ingredients of adverse
possession. Unless the person possessing the land has
a requisite animus the period for prescription does not
commence. As in the instant case, the appellant
categorically states that his possession is not adverse as
that of true owner, the logical corollary is that he did not
have the requisite animus”
Reference was also made to the decision in T. Anjanappa Vs.
Somalingappa (2006 (7) SCC 570) where it was held,
“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.”
In Annakili Vs. A Vedanayagam and Others (2007 (14) SCC 308),
reference was made to P.T.Munichikkanna Reddy Vs. Revamma
(2007 (6) SCC 59) where it was held,
“Therefore it will have to be kept in mind the courts
around the world are taking an unkind view towards
statutes of limitation overriding property rights”
The Allahabad High Court in Ramzan Vs. Gafooran (2008 (2) KLT SN
68 (C.No.82) stated,
“Where the defendants were not sure as to who
R.S.A.No.934 of 2003 7
was the true owner and question of their being in hostile
possession, then the question of denying title of true
owner does not arise. At the most, the defendants had
claimed and which was found to be correct by the trial
court that they had been in possession of the disputed
property since the inception of the sale deeds in their
favour. They came in possession, according to their
showing, as owner of the property in question. It follows
that they exercised their right over the disputed
property as owner and exercise of such right, by no
stretch of imagination, it can be said that they claimed
their title adverse to the true owner. Thus the
possession of the contesting defendants was not of the
variety and degree which was required for adverse
possession to materialise”
In Hemaji Waghaji Jat Vs. Bhikhabhai Khengarbhai Harijan (2008
(4) KLT 357 (SC)) the Supreme Court held that adverse possession
must start with a wrongful disposition of rightful owner and must be
actual, visible, exclusive, hostile and continued over the statutory
period. Reference was made to Karnataka Board of Wakf Vs.
Government of India and Others (2004 (10) SCC 779) where it was
held,
“In the eye of the law, an owner would be deemed to be
in possession of a property so long as there is no
intrusion. 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
R.S.A.No.934 of 2003 8
is a hostile possession by clearly asserting hostile title in
denial of the title of the true owner. It is a well-settled
principle that a party claiming adverse possession must
prove that his possession is “necvi, 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 disposition
of the rightful owner and be actual, visible, exclusive,
hostile and continued over the statutory period.”
The decision relied on by learned senior Advocate for respondent No.1
(P. T. Munichikkanna Reddy Vs. Revamma (AIR 2007 (SC) 1753))
states,
“…. the plaintiffs submit that in any event the plaintiffs
have perfected their title by adverse possession as the
plaintiffs have been in open, continuous uninterrupted
and hostile possession of the plaint schedule land,
adversely to the interest of any other person including
the defendant for the past over 50 years exercising
absolute rights of ownership in respect of the plaint
schedule land……. ”
In para 5, it is observed,
“Adverse possession in one sense is based on the
theory or presumption that the owner has abandoned
the property to the adverse possessor on the
acquiescence of the owner to the hostile acts and claims
of the person in possession. It follows that sound
qualities of a typical adverse possession lie in it being
open, continuous and hostile.”
R.S.A.No.934 of 2003 9
In para 9 the nature of enquiry required to assess a claim of adverse
possession is summarized thus,
“.. 1. Application of limitation provision thereby
jurisprudentially “willful neglect” element on part of the
owner established. Successful application in this regard
distances the title of the land from the paper owner.
2. Specific positive intention to dispossess on
the part of the adverse possessor effectively shifts the
title already distanced from the paper owner, to the
adverse possessor. Right thereby accrues in favour of
adverse possessor as intent to dispossess is an express
statement of urgency and intention in the upkeep of the
property.”
The argument advanced by learned Senior Advocate for respondent
No.1 is that even the evidence of appellants would show that right
from 1980 onwards they have been demanding possession of the suit
property but that was not complied either by respondent No.1 or his
predecessor in interest (deceased defendant No.1) and hence, atleast
from 1980 onwards respondent No.1 and his predecessor in interest
are in possession of the suit property asserting hostile title against
appellants and hence, the suit filed in the year 1992 is barred by
limitation. Learned Senior Advocate referred me to the evidence of
PW1 who is said to have mediated the alleged mortgage in favour of
Ouseph Mathan and the sub mortgage to deceased defendant No.1,
predecessor in interest of respondent No.1. It is also the submission of
R.S.A.No.934 of 2003 10
learned Senior Advocate that this court has to bear in mind that the
courts below have found against the plea of mortgage.
7. I have gone through the evidence of PW1, he claimed to
have mediated the alleged mortgage by Joseph, predecessor in
interest of appellants in favour of Ouseph Mathan for the sum of
Rs.1500/-. An agreement was also executed in which PW1 was a
witness. There was an understanding that a deed of mortgage will be
executed. Later he heard that the deed of mortgage was executed.
When the Ouseph Mathan was in need of money, he sub mortgaged
the property to deceased defendant No.1, predecessor in interest of
respondent No.1. According to PW1, during 1980 appellants
demanded deceased defendant No.1 to redeem the mortgage on
receiving the mortgage. In the meantime, deceased defendant No.1
started ploughing of the nilam (‘ ‘) which according to the
learned senior Advocate was in derogation of the alleged mortgage.
8. Case of appellants as spoken by PW1 is that the possession
of the suit properties was given to Ouseph Mathan and he has been
cultivating the same. It is further case that Ouseph Mathan sub
mortgaged the property to deceased defendant No.1. The demand for
possession in the year 1980 was in the above circumstances,
appellants being under the impression that there was a mortgage in
favour of Ouseph Mathan and sub mortgage in favour of deceased
R.S.A.No.934 of 2003 11
defendant No.1. Therefore, I am unable to understand the said demand
made by the appellants as a demand for possession from a person who
was asserting hostile title to them. That, the courts below did not
uphold the plea of mortgage in the absence of evidence does not mean
that at the time appellants made the demand in the year 1980 they
were under the impression that the person in possession was asserting
hostile title against them.
8. The decisions I have referred above would show that to
extinguish title of the true owner and to confer title on the person in
possession under section 27 of the Limitation Act on a plea of adverse
possession and limitation apart from showing possession for the
prescribed period, it is also to be shown that he was holding the
property adversely to the interest of the real owner, asserting hostile
title to his knowledge. On the other had if the person in possession
continued to be so on the strength of the document of title relied by
him, question of his being in adverse possession of the property as
against the true owner does not arise. The contention raised in para 4
of the written statement is that deceased defendant No.1 is got 6.80
acres and virivu (the total extent being 9 and odd acres) in survey
No.217/3 as per oral lease of the year 1120 followed by the
assignment of jenm rights on 04-08-1960 and thus, himself, and
thereafter respondent No.1 has been and is in possession and
enjoyment of the suit property. It is also contended that in the suit
R.S.A.No.934 of 2003 12
property appellants or their predecessor had no right, title and interest.
Specific contention raised by respondent No.1 and his predecessor is
that the 5.54 acres which belonged to Thressiamma, a part of which is
the suit property lie towards the southern side of property held by
respondent No.1 as above stated. Deceased defendant No.1 and
respondent No.1 have no claim of title or possession of any land in
survey No.218/1/1. This is asserted by respondent No.1 in his
evidence as DW1. He stated that he is entitled to possession of only
the property comprised in survey No.217/3 and that he has no claim or
objection regarding any property in survey No.218/1/1. He went to the
extent of saying that he has no objection in allowing recovery of
possession of the land comprised in survey No.218/1/1. According to
respondent No.1 (DW1), he is in possession of property on the strength
of title and not holding any portion of the disputed property. That
contention of respondent No.1 cannot be understood as meaning that
he is holding the suit property adverse to the title of the appellants.
Contention raised by respondent No.1 and his predecessor in interest
and evidence let in by respondent No.1 do not satisfy the requirements
laid down by Supreme Court in the decisions referred above to
extinguish title of appellants and to confer title on respondent No.1 and
his predecessor in interest by adverse possession and the law of
limitation. First appellate court held that respondent No.1 is in adverse
possession of the property and it is adverse to the whole world
R.S.A.No.934 of 2003 13
including the appellants which in the light of the decisions I have
referred above and the evidence on record cannot stand. On going
through the judgment of first appellate court, I find that it is not in
accordance with the principles laid down by the Supreme Court that
the first appellate court found that respondent No.1 and his
predecessor in interest perfected title by adverse possession and
limitation thereby extinguishing the title of the appellants. That finding
cannot be sustained. Respondent No.1 was not able to prove that he
acquired title over the suit property by adverse possession. As such
judgment and decree of the first appellate court cannot sustained and
it is liable to be set aside in restoration of the judgment and decree of
the trial court. The substantial question of law framed is answered
accordingly.
Resultantly the second appeal succeed. Judgment and decree of
the first appellate court are set aside and that of the trial court are
restored. Parties will suffer their respective costs in this appeal.
THOMAS P JOSEPH, JUDGE
Sbna/