IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1047 of 2008()
1. PURUSHOTHAMAN AND ANOTHER
... Petitioner
Vs
1. SREEDEVIAMMA AND OTHERS
... Respondent
For Petitioner :SRI.G.SREEKUMAR (CHELUR)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :03/11/2008
O R D E R
V.RAMKUMAR, J.
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R.S.A.No. 1047 of 2008
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Dated this the 3rd day of November, 2008.
JUDGMENT
Defendants 1 and 2 in O.S. No. 2149 of 2003 on the file of
the Principal Munsiff’s Court, Irinjalakuda are the appellants in
this Second Appeal. They are husband and wife. The 1st
defendant and the 2nd plaintiff are the son and daughter
respectively of the 1st plaintiff and the 3rd plaintiff is the husband
of the 2nd plaintiff. The 2nd defendant is the wife of the 1st
defendant. The aforesaid suit was filed by the mother and her
daughter (who is the sister of the 1st defendant) seeking recovery
of possession of the plaint B schedule property admeasuring 6.5
cents with a residential building thereon which is claimed to be
part of the plaint A schedule property admeasuring 33 cents of
land comprised in Survey No. 833 of Poomangalam village.
According to the plaintiff, the plaint A schedule property was
alloted to the share of plaintiffs 1 and 2 as item No. 1 in Ext.A1
registered partition deed dated 12.03.1986 and item No.2 under
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Ext.A1 partition deed was allotted to the 1st defendant. The
further case of the plaintiffs is that the 1st defendant sold the
land allotted to him under Ext.A1 partition and became
homeless. Thereupon, plaintiffs 1 and 2 constructed a house
in a corner of the plaint A schedule property and identified as
6.5 cents (plaint B schedule property) and permitted the 1st
defendant to reside there since 1990 and thereafter the said
permission was revoked and the suit is filed for recovery of
possession on the strength of the plaintiffs’ title.
2. The appellants who were husband and wife raised the
following contentions:-
It was to discharge the family debts that the 1st
defendant sold the property alloted to him under Ext.A1
partition deed. Thereupon, his mother and sister namely
plaintiffs 1 and 2 orally gifted the site covered by plaint B
schedule property to the 1st defendant on 25.12.1988 and the
1st defendant constructed the present house thereon spending
Rs.3 lakhs, the funds for which was raised from the salary
income of his wife (2nd defendant) who is employed as a
teacher.
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3. The present suit was jointly tried along with O.S. No.
1943 of 2002, which was a suit filed by the present 1st
defendant against plaintiffs 2 and 3 seeking a perpetual
injunction in respect of the present plaint B schedule property.
O.S. No. 2149 of 2003 was treated as the leading case in
which both sides adduced evidence. Exts. A1 to A19 are the
documents marked on the side of the appellants and Exts. B1
to B14 are the documents marked on the side of the plaintiffs.
The 1st defendant was examined as PW1 and he also
examined two other witnesses as PWs 2 and 3. The 3rd
plaintiff was examined as DW1.
4. The learned Munsiff after trial dismissed O.S. No.
1943 of 2002 holding inter alia that the plaintiff therein who is
the 1st defendant in the present suit, had failed to establish his
possession of the plaint B schedule property. O.S. No. 2149 of
2003 was decreed holding that the oral gift set up by the
defendants therein is not true and accepting the case of
plaintiffs 1 and 2 therein to hold that they have proved their
title over the plaint B schedule property. It was also found
that since the defendants have not put forward a plea of
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adverse possession and limitation, the title of the plaintiffs are
not lost by any mode. Aggrieved by the decree passed in O.S.
No. 1943 of 2002, the plaintiff therein who is the present 1st
defendant filed A.S. No. 75 of 2005. Aggrieved by the decree
passed in O.S No. 2149 of 2003, the present appellant filed
A.S. No. 79 of 2005. Both the appeals were heard and
disposed of by a common judgment as per which the lower
appellate court confirmed the decrees passed by the trial
court. Hence this Second Appeal arising out of O.S. No. 2149
of 2003.
5. The learned counsel appearing for the
appellants/defendants made the following submissions before
me attacking the decree passed by the courts below:-
Even though what was pleaded in the written statement
was an oral gift dated 25.12.1988, it was in effect a permission
to occupy the site of the plaint B schedule property over which
it was the 1st defendant who constructed the house in question.
Even though he had became homeless after selling off the
property obtained by him under Ext.A1 partition deed, his
mother and sister had permitted him to occupy the site
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covered by plaint B schedule property and it was the 1st
defendant who constructed the house thereon utilising the
income derived from his wife who is employed as a teacher.
The courts below have overlooked the fact that the 1st
defendant had produced building tax receipts showing that he
was in exclusive possession of the building right from 1990
onwards and Exts.A9 and A10 ration cards also showed that he
was in occupation of the building. As against this, the plaintiffs
had only produced two tax receipts of the year 2003, Ext. B4
possession certificate, Ext.B6 certificate issued by the
Secretary, Poomangalam Grama Panchayat and Ext.A9 solitary
building tax receipt of the year 2004. When the defendants
have clearly shown that the site covered by the plaint B
schedule property was permitted to be occupied by the 1st
defendant and it was he who constructed the house thereon, a
case of irrevocable licence under Section 60(b) of the
Easements Act was clearly made out. The findings recorded
by the courts below that it was plaintiffs 1 and 2 who
constructed the house in question, is without advertence to the
evidence adduced by the appellants. Even though the plea
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taken in written statement was one of oral gift, the parties
knew that a plea of irrevocable licence was covered by
implication in the contentions raised by the appellants so that
the want of specific plea in respect of the contentions based on
Section 60(b) of the Easements Act could not have been put
against the appellants in view of the decision in Bhagwati v.
Chandramaul (AIR 1966 SC 735).
6. I am afraid that I cannot agree with the above
submissions. The specific contention raised in the written
statement as also in the plaint in the connected suit for
injunction by the 1st defendant, was that the site covered by
the present plaint B schedule property was orally gifted to the
1st defendant by plaintiffs 2 and 3 (his mother and sister) on
25.12.1988. As rightly observed by the courts below, it was
not open to the 1st defendant to put forward the case of oral
gift of the immovable property having an extent of 6.5 cents
worth more than 100 rupees without a registered instrument
contrary to the provisions under Section 123 of the Transfer of
Property Act and Section 17 of the Registration Act, 1908.
After setting up a specific case of oral gift, he cannot now turn
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round and raise a contention of permission to occupy the site
and putting up the house thereon so as to take shelter under
Section 60(b) of the Easements Act. Both the courts below
have concurrently held that it was plaintiffs 1 and 2 who
constructed the building in plaint B schedule property. If so,
even if the appellants’ case that by oral gift what he meant
was a permission to occupy the site, he cannot press into
service Section 60(b) of the Easements Act. On the concurrent
findings recorded by the courts below his plea under Section
60(b) of the Easements Act also cannot stand. Once it is found
that his case of oral gift is not true, then the title remains with
plaintiffs 1 and 2 whose title can be defeated only by a
successful plea of adverse possession and limitation. There
has been no plea taken that the title of the plaintiffs is lost by
adverse possession and limitation. Such being the possession,
I do not find any question of law to justify the admission of
this Second Appeal. The questions formulated in the
memorandum of appeal also do not arise for consideration in
this Second Appeal which is accordingly dismissed in limine.
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7. The learned counsel appearing for the appellants
submitted that they may be given a breathing time to vacate
the plaint B schedule property. I am inclined to grant the
appellants one month’s time from today on condition that the
appellants file an affidavit before the Executing Court within
two weeks from today undertaking to unconditionally
surrender vacant possession of the plaint B schedule property
including the house thereon within one month from today and
that they shall not induct strangers into the property or
commit any act of waste thereon.
Dated this the 3rd day of November, 2008.
V. RAMKUMAR, JUDGE.
rv
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