IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 136 of 1994(G)
1. VEERANKUTTY
... Petitioner
Vs
1. NABEEESA
... Respondent
For Petitioner :SRI.K.V.JAYACHANDRAN
For Respondent :SRI.K.K.JAYASOORIAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :09/07/2010
O R D E R
P. BHAVADASAN, J.
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S.A. No. 136 of 1994
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Dated this the 9th day of July, 2010.
JUDGMENT
The plaintiffs in O.S. 222 of 1981 before the
Munsiff’s Court, Ernakulam are the appellants.
2. Late Kunjan Marakkar had eight children.
They are Muhammed, the first plaintiff, Veerankutty, the
second plaintiff, Kochupathu, the third plaintiff, Sareeba,
the fourth plaintiff, Aliyumma, the fifth plaintiff and
Hameed, who is no more and his legal heirs are plaintiffs
6 to 10. He had a daughter by name Nabeesa, who is
shown as the first defendant. The second defendant is
her husband and defendants 3 to 6 are their children. He
has another son Kadir Pillai, who is no more and his legal
heirs are defendants 7 to 13.
3. The suit is one for partition. The plaint
schedule consists of two items, namely 1.16 acres in Sy.
Nos.651/8A and 651/8B of Puthuppally Village and item
S.A. 136/1994. 2
No.2, which consists of 13 = cents in Sy. No.712/5 of the
same Village.
4. Items 1 and 2 of the plaint schedule and
another extent of 69 = cents comprised in various survey
numbers originally belonged to Kunjan Marakkar, who is the
predecessor in interest of Kadir Pillai, first defendant and the
plaintiffs. After the death of Kunjan Marakkar, according to
the plaintiffs, his rights devolved on the legal heirs, who
were since then in joint possession. The legal heirs decided
that for the purpose of proper management, all the
properties be entrusted to Kadir Pillai. Kadir Pillai
possessed and managed the properties on behalf of the co-
owners and he used to give them their due share of income.
As regards 69 = cents in Sy. No.65/2, the second plaintiff
and the husband of the sixth plaintiff assigned their share
to the first plaintiff. So that he had 6/14 shares.
Muhammed, another son of late Kunjan Marakkar had filed
O.S. 513 of 1964 for partition. Plaintiffs 3, 5 and the first
defendant relinquished their shares in favour of the first
S.A. 136/1994. 3
plaintiff. Since then, the entire 69 = cents has become the
property of the first plaintiff and that is not included the suit.
He is the absolute owner thereof. The other two items were
in the possession and management of Kadir Pillai and on his
death his legal heirs are managing the same on behalf of all
the co-sharers. Muhammed, who has filed O.S. 513 of
1964 had also relinquished his rights over all the three items
in favour of the first plaintiff and thereafter 69 = cents has
become the absolute property of the first plaintiff. One
Abdul Rahiman had claimed right over plaint item No.2 and
laid O.S. 97 of 1971making defendants 1 and 2 and Kadir
Pillai as the defendants. That was dismissed. Thereafter the
first and second defendant colluded with Abdul Rahiman and
pulled down the hut in the property and put up a pucca
building. Kadir Pillai instituted O.S. 267 of 1979 for
injunction against defendants 1 and 2. During the pendency
of the suit, Kadir Pillai died and his legal heirs came on the
party array. It seems that the matter was comprised and a
deed was executed between the legal heirs of Kadir Pillai
S.A. 136/1994. 4
and defendants 1 and 2 without the junction of the other co-
sharers. That transaction is not valid and binding on the
plaintiffs. The first and second defendant obtained
kudikidappu right over 2nd item of property in collusion with
defendants 7 to 13. They are not entitled to kudikidappu
rights. Kadir Pillai could not have granted any permission to
either the first defendant or to the second defendant to
reside in the property and that in fact he has not given any
consent also. Even if Kadir Pillai has given any such
permission, that is not binding on the plaintiffs. On the basis
of these allegations the suit was laid for partition, whereby
the plaintiffs claimed 8/14 shares.
5. First defendant and defendants 2 to 6 filed
written statements almost on the similar lines. They
contended that they are not necessary parties to the suit
and the suit is bad for mis-joinder as well as non-joinder of
parties. They disputed the title of the plaintiffs. Item No.2
as in the exclusive possession of Kadir Pillai and since
defendants 1 and 2 did not have any abode of their own,
S.A. 136/1994. 5
they were allowed to reside and they have put up a building
and are residing therein. The plaintiffs were fully aware of
O.S. 267 of 1979 filed by Kadir Pillai and what transpired
thereafter. These defendants have purchased the
kudikidapu rights by approaching the Land Tribunal
concerned. The balance 3 = cents had been purchased by
the first defendant as per document No.6077 of 1980.
Based on these contentions, they prayed for a dismissal of
the suit.
6. Defendants 7 to 13 filed separate written
statements. They are the wife and children of late Kadir
Pillai. They disputed the claim of lease urged in the plaint of
the year 1116 M.E. The alleged entrustment of property by
the co-owners for management and administration to Kadir
Pillai and the claim of sharing of income were disputed. The
first plaintiff had sold his rights over the property to Kadir
Pillai on 21.4.1960. Thereafter Kadir Pillai became the
absolute owner. It was pointed out by them that after the
death of Kunju Marakkar the properties were jointly held by
S.A. 136/1994. 6
the first plaintiff and Kadir Pillai only and the other sharers
had no manner of rights over the properties. It was
thereafter that the first plaintiff had executed the
assignment deed in favour of Kadir Pillai. 49 cents was
assigned to the seventh defendant by Kadir Pillai. A building
has been put up in that property and defendants 7 to 13 are
residing therein. They contended that even if anybody else
had any manner of right over the property, that was lost by
adverse possession and limitation. In O.S. 97 of 1971 it was
found that the properties belonged to Kadir Pillai. On the
basis of these contentions, they pointed that the plaintiffs
are not entitled to any reliefs and sought for a dismissal of
the suit.
7. The trial court raised necessary issues for
consideration. The evidence consists of the testimony of
P.W.1 and the documents marked as Exts.A1 to A15 from
the side of the plaintiffs. The defendants had D.Ws. 1 and 2
examined and Exts. B1 to B24 marked. On an appreciation
of the materials before it, the court below found that the
S.A. 136/1994. 7
properties are partible and therefore passed a preliminary
decree, which reads as follows:
“In the result, a preliminary decree is
passed allotting 1st plaintiff 6/14 share in plaint
item No.1, 3rd plaintiff, 4th plaintiff, 5th plaintiff
and 1st defendant each 1/14 share in item No.1
and defendant 7 to 13 together allotted 4/14
share in item No.1 over 3.850 cents of plaint item
No.2 first plaintiff is allotted 4/14 share. 2nd
plaintiff is allotted 2/14 share, 3rd plaintiff, 4th
plaintiff, 5th plaintiff each 1/14 share and 1st
defendant 3/14. Plaintiffs are entitled to get
proportionate mesne profit. Plaintiffs are allowed
to apply for passing a final decree within 3 months
from this date where in a commissioner will be
appointed to divide, demarcate the property by
metes and bounds and allot the shares to parties
in accordance with the preliminary decree. The
Commissioner will also ascertain the mesne profits
from the property. The quantum of mesne profits
will be determined in the final decree. Suit is
partly decreed without costs.”
8. Defendants 7 to 13 carried the matter in appeal
as A.S.110 of 1987 and the aggrieved plaintiffs carried the
S.A. 136/1994. 8
matter in appeal as A.S. 111 of 1987. The appellate court on
an independent evaluation of the evidence in the case found
the case set up by defendants 7 to 3 to be true and
accordingly allowed their appeal. The other appeal was
dismissed. Thus the properties became non-partible.
9. Aggrieved by the appellate court judgment and
decree, the plaintiffs have come up in appeal. During the
pendency of the appeal the fourth defendant died and since
his legal heirs are already on the party array, the same was
recorded. The 14th defendant also died and his legal heirs
were brought on the party array as respondents 15 to 22.
10. In the appeal before lower court, while
defendants 7 to 13 had attacked the trial court judgment,
the appeal by the plaintiffs was against the rejection of the
claim of partition of 10 cents in item No.2, wherein
defendants 1 and 2 had obtained kudikidappu rights. The
appellate court held that as regards item No.1, the claim of
the plaintiffs have been barred by adverse possession and
limitation.
S.A. 136/1994. 9
11. The following substantial questions of law are
seen raised in this Second Appeal:
“A) Is the court below justified in
entering findings without assigning reasons and
discussing the facts evidence and the law on the
points. Being fact finding court whether the court
below can decide the dispute in such arbitrary
manner.
B) Whether Ext.B1 document takes
away the rights of 1st plaintiff which he obtained
as per Ext.A2 and A7. When there is no mention
about Ext.A2in Ext.B1 document and when Ext.A7
is much after Ext.B1.
C) Whether Ext.B1 will extinguish the
co-ownership rights of other co-owners who are
not parties to the same and whether Ext.B1 will
give absolute right to Kadir Pillai.
D) Whether the respondents 7 to 13,
who claims title by release, can claim absolute
right by adverse possession and ouster which was
not claimed by their predecessor Kadir Pillai.
E) Whether the plea of oral transfer
which is not pleaded by respondents 7 to 13 in
their written statement and in respect of which no
S.A. 136/1994. 10
issue was framed before court below and no
evidence was adduced can be agitated for the first
time before the appellate court.
F) When one of the co-owners transfers
his rights over the co-ownership property can that
affect and bind the rights of other co-owners.
Whether such transfer can be ignored by the other
co-owners in getting their shares.
G) Whether a permission to erect
homestead given by one of the co-owners over the
joint property bind other co-owners and whether
the other co-owners can ignore such actions in
getting their share.
H) Whether the patta obtained without
making all the co-owners parties can bind them
and whether that can be avoided by the co-owners
who were not parties to the proceeding and who
have not given permission to erect a homestead.”
12. Learned counsel appearing for the appellants
raised three points for consideration, 1) the finding that the
claim of the plaintiffs is lost by adverse possession and
limitation is wrong, 2) property originally belonged to Kunjan
Marakkar, who is the predecessor in interest of the plaintiffs
S.A. 136/1994. 11
and defendants and on his death therefore the property
devolved on his legal heirs, 3) purchase certificate obtained
by defendants 1 and 2 are not binding on the plaintiffs.
13. Learned counsel pointed out that item Nos. 1
and 2 admittedly were acquired by Kunjan Marakker on
lease. After the death of Kunjan Marakkar therefore
naturally the legal heirs, who are the plaintiffs and
defendant No.1 and Kadir Pillai, the predecessor in interest
of defendants 7 to 13, succeed to the property. In fact
Kunjan Marakkar acquired item Nos. 1 and 2, and 69 =
cents in Sy. No. 651/2 and ie., 1 acre 16 cents in Sy.
No.651/8A and 8B. There is nothing to show that after the
death of Kunjan Marakkar, the properties were exclusively
possessed and enjoyed by the first plaintiff and Kadir Pillai.
The assignment deed said to have been executed by the
first plaintiff in favour of Kadir Pillai can at best affect the
rights of the first plaintiff and can have no value as regards
the other plaintiffs are concerned. The court below was
wrong in law in having accepted the plea of ouster put
S.A. 136/1994. 12
forward by defendants 7 to 13. A co-owner in possession is
deemed to be in possession on behalf of all the co-owners.
Unless it is shown by clear, convincing and cogent evidence
that the other co-sharers have been expressly excluded from
sharing the properties and their title had been denied, a co-
sharer cannot succeed on the plea of adverse possession
and limitation. Then again the permission granted by Kadir
Pillai to defendants 1 and 2 to occupy the land and put up
building therein cannot bind the other co-owners. He is not
competent to do so. Accordingly, it is contended that the
decree of the lower appellate court below is bad in law.
Learned counsel in support of his case relied on the
following decisions:
i) 2005(1) K.L.T. 864
ii) (2006) 7 SCC 570
iii) (2007) 6 SCC 59
iv) 2005 (4) K.L.T. 653
v) (1995) 2 SCC 543
vi) AIR 1981 SC 77
S.A. 136/1994. 13
14. Per contra, learned counsel appearing for the
contesting respondents pointed out that the court below has
addressed itself to the questions involved in the proper
perspective and has come to the correct conclusion. The
court below has found that after the death of Kunhi
Marakkar, the first plaintiff and late Kadir Pillai came into
possession of the suit properties independently and others
had no right in the properties. They held the properties as
their own. Later between them, 69 = cents was given to
the first plaintiff and the other item of property, 1.16 acres
was given to Kadir Pillai. Kadir Pillai independently acquired
13 = cents. It is true, according to learned counsel, that the
first plaintiff has got release deed from other legal heirs of
Kunhi Marakkar. But that is only a clever ploy adopted by
the first plaintiff to deny the legitimate rights of Kadir Pillai
over the properties given to him. Those persons who have
executed release deed in favour of the first plaintiff infact
have no manner of right over the properties. The recitals in
the release deed itself will reveal this fact. Even the first
S.A. 136/1994. 14
plaintiff in various litigations had clearly asserted that the
properties belonged exclusively to him and late Kadir Pillai
and that no other person person had any manner of right
over the same. It comes with little grace from him now to
say that others also have rights over the suit properties. It
is clear that after having made his possession safe, the first
plaintiff had instigated others, who never had any right in
the property and who never assailed the rights exercised by
the first plaintiff and late Kadir Pillai to file the present suit.
It is clear that the intention of the first plaintiff is to make
gain for himself. It is significant to notice that only the first
plaintiff who has managed to secure to himself with 69 =
cents has given evidence in the case. None of the other
sharers have come forward to give evidence. It must be
noticed that the suit was laid 32 years after the death of
Kunjan Marakkar and also after the death of Kadir Pillai. The
suit lacks bonafides. To constitute ouster of other co-sharers
there need not be any belligerent or violent conduct on the
part of the person in possession. It is sufficient to show that
S.A. 136/1994. 15
the said co-sharer had treated the property as exclusively
belonging to him and he had not shared any income with
other co-sharers and that he has asserted the hostile title as
against them. Such evidence is available in the case on
hand and it was on that basis the court below non-suited the
plaintiffs. Learned counsel therefore contended that no
grounds are made out to interfere with the judgment and
decree of the lower appellate court.
15. After hearing elaborately both sides, it is felt
that there is much force in the contention raised by the
learned counsel for the respondents in this appeal. The
reasons follow.
16. It is not in dispute that the property originally
belonged to Kunjan Marakkar. He held them on leasehold
right. He died in 1949. Normally as per law, the leasehold
right then devolve on the children of Kunju Marakkar. But
according to defendants 7 to 13 after the death of Kunju
Marakkar, the properties were exclusively possessed and
enjoyed by the first plaintiff and Kadir Pillai. None of the
S.A. 136/1994. 16
other legal heirs ever asserted any right over the suit items.
Thereafter there was an understanding between the first
plaintiff and Kadir Pillai, whereby 69 = cents was given to
the first plaintiff and Kadir Pillai was given the other item of
property. Thereafter Kadir Pillai released his rights over 69
= cents in favour of the first plaintiff. In turn the first
plaintiff executed a deed in favour of Kadir Pillai releasing all
his rights over the property set apart to Kadir Pillai. It was
therefore contended by defendants 7 to 13 that Kadir Pillai
ever since the release deed in favour of the first plaintiff
had been enjoying the property asserting his rights in
exclusion of all the co-sharers.
17. Another issue that is thrown up for
consideration is regarding the competency of Kadir Pillai to
give permission to defendants 1 and 2 to occupy the land for
residing. They succeeded in getting kudikidappu rights over
the property. Now the question is whether that is binding on
the other co-owners and what exactly is the right of Kadir
Pillai to grant permission.
S.A. 136/1994. 17
18. As already noticed that this is an accepted
case that the properties originally belonged to Kunju
Marakkar. The case put forward by the plaintiffs is that
consequent on the death of Kunji Marakkar, the leasehold
rights devolved on all the legal heirs. As far as 69 = cents in
Sy. No.651/2 is concerned, all sharers had relinquished their
rights in favour of the first plaintiff and therefore he became
the absolute owner thereof. Plaintiffs’ case is that as far as
the suit properties are concerned, they are entitled to a
share and the first plaintiff asserts that he is entitled to 8/14
share. The contention of defendants 7 to 13 had already
been adverted to. It is pointed out by them that as per
Ext.A1 document, the first plaintiff obtained jenm right over
the properties and the recital in the said document will
clearly show that the first plaintiff had accepted the fact that
after the death of Kunji Marakkar the suit properties, 69 =
cents and 1.16 acres owned by the predecessor in interest
of the plaintiffs taken were in the exclusive possession and
enjoyment of the first plaintiff and Kadir Pillai. It is clear
S.A. 136/1994. 18
from a reading of that document that no other legal heirs of
Kunji Marakkar had any manner of right over the property.
Thereafter by Ext.B1 dated 21.4.1960, the first plaintiff has
assigned 1.16 acres of land in favour of Kadir Pillai. In turn,
Kadir Pillai released rights over 69 = cents in favour of the
first plaintiff. It was thereafter that Exts. A2, A5, A6, At and
A8 that the first plaintiff had obtained to get release deeds
from other sharers in respect of 69 = cents. The
defendants pointed out that the mere fact that first plaintiff
has cleverly chosen to obtain release deed from others does
not lead to the conclusion that the suit properties were held
in common.
19. While things stood thus, one Abdul Rahiman
filed O.S. 97 of 1971. Property involved was plaint item
No.2. Late Kadir Pillai and defendants 1 and 2 were parties
to the said suit. In the said suit, Kadir Pillai filed a written
statement controverting the rights claimed by Abdul
Rahiman. In his written statement, he traced his title
through Kunju Marakkar and took the stand that he was in
S.A. 136/1994. 19
possession of the property after the death of Kunju Marakkar
as agreed to by all the legal heirs. The suit was dismissed
and the dismissal was confirmed in appeal. Written
statement of Kadir Pillai in the said suit is Ext.B4 and
Ext.B11 is the judgment in OS. 97 of 1971. Ext.B11 refers to
various other litigations also.
20. Plaintiffs laid claim on the basis that while the
case of 69 = cents in respect of which both jenm right and
kudikidappu right vested with the first plaintiff in the case of
the suit property Kadir Pillai has got assignment of the rights
of the first first plaintiff alone and the rights of other
plaintiffs remained with them.
21. Two main contentions are seen raised by
defendants 7 to 13, they are 1) consequent on the death of
Kunji Marakkar, the rights which he enjoyed over the suit
property came to vests with the first plaintiff and Kadir Pillai.
2) After obtaining jenm right, first plaintiff assigned his
rights over the suit properties in favour of Kadir Pillai. In
turn Kadir Pillai assigned his rights over 69 = cents . It is
S.A. 136/1994. 20
significant to notice that in Ext.A1 document by which jenm
right was acquired by the first plaintiff, there is clear recital
to the effect that consequent on the death of Kunji Marakkar
the entire properties held on leasehold by the first plaintiff
and late Kadir Pillai.
22. It is important to notice that Muhammed, S/o.
Kunji Marakkar in his second wife had instituted O.S. 513 of
1964 for partition. He had made all the legal heirs of Kunji
Marakkar has parties to the suit. First plaintiff was the first
defendant and Kadir Pillai was the second defendant. They
alone contested the suit. Others remained ex parte. First
plaintiff filed Ext.B3 written statement. Kadir Pillai filed Ext.
B2 written statement. There, both had asserted that after
the death of Kunji Marakkar items of properties taken on
lease by Kunji Marakkar came to vest with the first plaintiff
and laid Kadir Pillai, or in other words 69 = cents Sy. No.
652/2 and one acre and 16 cents in the other survey
numbers came into the exclusive possession of the first
plaintiff and Kadir Pillai. It is seen from the records that the
S.A. 136/1994. 21
said suit was later compromised. On this basis it is
contended by defendants 7 to 13 that after the death of
Kunji Marakkar first plaintiff and late Kadir Pillai alone
owned, possessed and enjoyed both the items. It is pointed
out by defendants 3 to 7 that at no point of time any of the
sharers had demanded their share of income nor was any
share of income paid to them. The court below has
accepted that going by Exts. B1, B2 and B3 there is a clear
assertion by the first plaintiff and Kadir Pillai that the suit
items along with 69 = cents belonged exclusively to them.
One must notice here that Exts.B2 and B3 written
statements were filed in a suit to which all other heirs of
Kunji Marakkar were parties. Therefore it must be presumed
that the other sharers knew about the contention taken by
the first plaintiff and late Kadir Pillai. It needs to be noticed
at this point of time that the present suit is laid in 1981.
23. Once it is accepted that Kunji Marakkar was
the owner of the property, normally on his death all his heirs
succeeded to the property as tenants in common. Mere non-
S.A. 136/1994. 22
participation in management, non-receipt of income by co-
sharers or non-payment by the co-sharer in possession may
not by themselves be sufficient to constitute ouster. A co-
owner is deemed to be in possession on behalf of all the
sharers. The burden is heavy on the co-sharer to show that
there was assertion of title hostile to the co-owner and
ouster is against the other co-sharers. May be that they
have not been given their share of properties, or mere
possession and enjoyment are not by itself sufficient.
24. According to learned counsel appearing for
the appellants in the case on hand there is no proof of
ouster and in fact the evidence is to the contrary. Therefore
it is contended that the lower appellate court ought not to
have interfered with the decree of the trial court.
25. Learned counsel appearing for the
respondents did not dispute the proposition of law. On the
other hand he contended that there is sufficient evidence to
show that after the death of Kunji Marakkar, the first plaintiff
and late Kadir Pillai came into exclusive possession and
S.A. 136/1994. 23
enjoyment of the suit properties and none of the other co-
sharers ever had any manner of right over the same.
According to learned counsel for the respondents from the
date of Ext.A1 assignment in favour of the first plaintiff of
the jenm rights, even according to the first plaintiff they
have been in exclusive possession and enjoyment in respect
of 1.16 acres and 69 = cents. Learned counsel also pointed
out that in the suit by Muhammed all the legal heirs were
parties. While the first plaintiff and late Kadir Pillai alone
contested and others chose to remain ex-parte. It was
pointed out that in the written statement filed by defendants
1 and 2 in the said suit, they had asserted rights in
themselves and the other co-sharers should be deemed to
have knowledge about the same. According to learned
counsel, it is not the law that there can never be a claim of
adverse possession against a co-owner. Learned counsel
accepted that a high degree of proof is required. But learned
counsel invited the attention of this court to the various
litigations between the parties, the conduct of the parties, to
S.A. 136/1994. 24
emphasis that there is nothing to show that after the
death of Kunji Marakkar the suit properties were enjoyed in
common by any of the sharers at any point of time and the
co-sharers had demanded profits or share of profit was paid
or asserted any manner of right over the suit properties.
Accordingly, learned counsel pointed out that no
interference is called for with the judgment and decree of
the lower appellate court. In support of his contentions,
learned counsel relied on the decisions reported in
i) 48 I.C. 692
ii) AIR 1926 Calcutta 589
iii) AIR 1972 Madras 467
iv) AIR 1977 Madhya Pradesh 34
v) AIR 1936 Nagpore 232
vi) AIR 1957 SC 314
vii) 1969 K.L.T. 121
viii) AIR 1977 Kerala 241
ix) AIR 1925 Lahore 125
x) AIR 1950 PC 344
26. Before going further, it is useful to refer what
is meant by adverse possession. The classic requirements
S.A. 136/1994. 25
of adverse possession are that possession must be nec vi
nec clan nec precario, that is possession must be adequate
in continuity, publicity and in extent. There must be an
animus to hold it adversely to the true holder. The claim of
adverse possession involves a claim in derogation of the
rights of the real owner or in other words one who claims
adverse possession admits that title belongs to another
person. It actually means that possession of a person
holding the land on his own behalf or on behalf of some
person other than the real owner having a right to
immediate possession. Adverse possession is a possession
that is hostile, under a claim or colour of title, actual, open,
notorious, exclusive and continuous.
27. As regards the co-owners are concerned, the
law is that there can be no adverse possession by a co-
owner, unless there has been denial of title and ouster to
the knowledge of others. Normally, the rule is that
possession of co-owner is possession on behalf of all the
S.A. 136/1994. 26
other co-owners. Now one may refer to the decisions cited
by both sides.
28. In the decision reported in George Thomas
v. Geondy Joseph (2005(1)K.L.T. 864) it was held as
follows:
“A mere possession in the relief clause
that there was an uninterrupted possession for
several 12 years or that the plaintiff had acquired
an absolute title is not enough to raise such a
plea. Long possession is not necessarily adverse
possession and the prayer clause is not a
substitute for a plea. Concrete proof of open,
hostile and continuous possession is required in
order to substantiate a claim of perfection of title
by adverse possession. Verifiable details of the
nature of the occupation would be essential and
mere assertions would not be adequate
substitute.”
29. In the decision reported in T. Anjanappa v.
Somalingappa ((2006) 7 SCC 570), it was held as follows:
“The concept of adverse possession
contemplates a hostile possession i.e. a
S.A. 136/1994. 27
possession which is expressly or impliedly in
denial of the title of the true owner. Possession to
be adverse must be possession by a person who
does not acknowledge the other’s rights but
denies them. The principle of law is firmly
established that a person who bases his title on
adverse possession must show by clear and
unequivocal evidence that his possession was
hostile to the real owner and amounted to denial
of his title to the property claimed. For deciding
whether the alleged acts of a person constituted
adverse possession, the animus of the person
doing those acts is the most crucial factor.
Adverse possession is commenced in wrong and is
aimed against right. A person is said to hold the
property adversely to the real owner when that
person in denial of the owner’s right excluded him
from the enjoyment of his property.
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 mater 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
S.A. 136/1994. 28
since the possession of one co-owner can be referred
to his status as co-owner, it cannot be considered
adverse to other co-owners.”
Adverse possession is that form of possession or occupancy of land which isinconsistent 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 [hostile
possession] which is expressly or impliedly in denial of
title of the true owner. Under Article 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 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
S.A. 136/1994. 29
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 all. (See Annasaheb Bapusaheb Patil v.
Balwant, (1995) 2 SCC 554, paras 14-15).”
An occupation of reality is inconsistent with
the right of the true owner. Where a person
possesses property in a manner in which he is not
entitled to possess it, and without anything to
show that he possesses it otherwise than an
owner (that is, with the intention of excluding all
persons from it, including the rightful owner), he is
in adverse possession of it. Thus, if A is in
possession of a field of B’s, he is in adverse
S.A. 136/1994. 30
possession of it unless there is something to show
that his possession is consistent with a recognition
of B’s title. (See Ward v. Carttar) Adverse
possession is of two kinds, according as it was
adverse from the beginning, or has become so
subsequently. Thus, if a mere trespasser takes
possession of A’s property, and retains it against
him, his possession is adverse ab initio. But if A
grants a lease of land to B, or B obtains
possession of the land as A’s bailiff, or guardian,
or trustee, his possession can only become
adverse by some change in his position. Adverse
possession not only entitles the adverse
possessor, like every other possessor, to be
protected in his possession against all who cannot
show a better title, but also, if the adverse
possessor remains in possession for a certain
period of time produces the effect either of
barring the right of the true owner, and thus
converting the possessor into the owner, or of
depriving the true owner of his right of action to
recover his property and this although the true
owner is ignorant of the adverse possessor being
in occupation.
……….. ………….
S.A. 136/1994. 31
It is well recognised proposition in law that
mere possession however long does not
necessarily mean that it is adverse to the true
owner. Adverse possession really means the
hostile possession which is expressly or impliedly
in denial of title of the true owner and in order to
constitute adverse possession the possession
proved must be adequate in continuity, in
publicity and in extent so as to show that it is
adverse to the true owner. The classical
requirements of acquisition of title by adverse
possession are that such possession in denial of
the true owner’s title must be peaceful, open and
continuous. The possession must be open and
hostile enough to be capable of being known by
the parties interested in the property, though it is
not necessary that there should be evidence of
the adverse possessor actually informing the real
owner of the former’s hostile action.”
30. In the decision reported in P.T.
Munichikkanna Reddy v. Revamma ((2007) 6 SCC 59), it
was held as follows:
“The law in this behalf has undergone a
change. In terms of Articles 142 and 144 of the
S.A. 136/1994. 32
Limitation Act, 1908, the burden of proof was on
the plaintiff to show within 12 years from the date
of institution of the suit that he had title and
possession of the land, whereas in terms of
Articles 64 and 65 of the Limitation Act, 1963, the
legal position has underwent complete change
insofar as the onus is concerned: once a party
proves its title, the onus of proof would be on the
other party to prove claims of title by adverse
possession. The ingredients of adverse possession
have succinctly been stated by this Court in S.M.
Karim v. Bibi Sakina in the following terms:
“Adverse possession must be adequate in
continuity, in publicity and extent and a plea is
required at the least to show when possession
becomes adverse so that the starting point of
limitation against the party affected can be found.”
The aforementioned principle has been
reiterated by this Court in Saroop Singh v. Banto
stating:
“29. In terms of Article 65 the starting point of
limitation does not commence from the date when the
right of ownership arises to the plaintiff but
commences from the date the defendant’s possession
becomes adverse. (See Vasantiben Prahladji Nayak v.
Somnath Muljibhai Nayak).
S.A. 136/1994. 33
30. ‘Animus possidendi’ is one of the ingredients
of adverse possession. Unless the person possessing
the land has a requisite animus the period of
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 (See Mohd.Mohd. ali v. Jagadish Kalita, SCC
para 21.)
In Mohammadbhai Kasambhai Sheikh v.
Abdulla Kasambhai Sheikh this court held:
“But as has been held in Mahomedally
Tyebally v. Safiabai the heirs of Mohammedans
(which the parties before us are) succeed to the
estate in specific shares as tenants-in-common
and a suit by an heir for his/her share was
governed, as regards immovable property, by
Article 144 of the Limitation Act, 1908. Article 144
of the Limitation Act, 1908 has been materially re-
enacted as Article 65 of the Limitation Act, 1963
and provides that the suit for possession of
immovable property or any interest therein based
on title must be filed within a period of 12 years
from the date when the possession of the
defendant becomes adverse to the plaintiff.
Therefore, unless the defendant raises the defence
S.A. 136/1994. 34
of adverse possession to a claim for a share by an
heir to ancestral property, he cannot also raise an
issue relating to the limitation of the plaintiff’s
claim.”
31. In the decision reported in Annasaheb
Bapusaheb Patil v. Balwant ((1995) 2 SCC 543), it was
held as follows:
“Adverse possession means a hostile
assertion i.e. a possession which is expressly or
impliedly in denial of title of the true owner.
Under Article 65, 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 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
S.A. 136/1994. 35
hostile to the real owner and amounted to a denial
of his title to the property claimed.
The defendant, therefore, must plead and
prove that after the re-grant, he asserted his own
exclusive right, title and interest to the plaint
schedule property to the knowledge of the plaintiff
and the latter acquiesced to such a hostile
exercise of the right and allowed the defendant to
remain in continuous possession and enjoyment of
the property in assertion of that hostile title during
the entire statutory period of 12 years without any
let and hindrance and the plaintiff merely stood
thereby.”
32. In the decision reported in Karbalai Begum
v. Mohammed Sayeed (AIR 1981 SC 77) it was held as
follows:
“It is well settled that mere non-participation
in the rent and profits of the land of a co-sharer
does not amount to an ouster so as to give title by
adverse possession to the other co-sharer in
possession. Indeed even if this fact is admitted,
then the legal position would be that the co-
sharers in possession would become constructive
trustees on behalf of the co-sharer who is not in
S.A. 136/1994. 36
possession and the right of such co-sharer would
be deemed to be protected by the trustees.”
33. Now one may refer to the decisions cited by
the learned counsel for the respondents. In the decision
reported in Chand Bibi v. Lal Mohamed (1918 Vol.48 I.C.
692), it was held as follows:
“That the possession of the brother was
adverse to the plaintiff, even though it was not
shown that there was any demand made by the
plaintiff which was refused by the brother.”
34. In the decision reported in Siteswar Roy v.
Tepua Barman (AIR 1926 Calcutta 589) the facts showed
that for 30 years the other co-sharers did not assert any
manner of right over the suit property. In that context it was
held as follows:
“That they cannot be allowed to contend
that the co sharers-defendants were in possession
on behalf of the plaintiffs.”
35. In the decision reported in Ibramsa v. Sk.
Meerasa (AIR 1972 Madras 467) a distinction was drawn
S.A. 136/1994. 37
between adverse possession as between strangers and co-
owners. In that decision it was held as follows:
“There is a distinction between adverse
possession as between strangers and ouster and
exclusion of co-owners. In the case of adverse
possession as against strangers, it is sufficient
that adverse possession is overt and without any
attempt at concealment. It is not necessary that
adverse possession should be brought home to
the knowledge of the owner. When the adverse
possession is open, visible and notorious, if the
owner remains ignorant and indifferent he cannot
complain. In the case of ouster of a co-owner the
position is different. To constitute ouster law
requires something than mere exclusive
possession and exclusive receipt of income.
There must also be an ouster a hostile, open
denial and an open repudiation of that co-owner;s
right to the latter’s knowledge. But this does not
mean that the co-owner who has been ousted our
excluded should be expressly informed as such by
the other co-owner. If other circumstances concur
the courts can legitimately infer from exclusive
possession for a considerable length of time, that
S.A. 136/1994. 38
the other co-owner has been excluded to his
knowledge. The theory of lost grant is applicable
to support long continued possession for
considerable length of time. If the co-owner does
not assert his right for a considerable length of
time, the inactive co-owner must take the
consequences for long delay in bringing a suit to
establish his right, which delay has prejudiced the
other side and occasioned loss of evidence by
lapse of time.”
36. In the decision reported in P. Lakshmi
Reddy v. L. Lakshmi Reddy (AIR 1957 SC 314) it was held
as follows:
“But it is well settled that in order to establish
adverse possession of one-co-heir as against
another it is not enough to show that one out of
them is in sole possession and enjoyment of the
profits, of the properties. Ouster of the non-
possessing co-heir by the co-heir in possession
who claims his possession to be adverse, should
be made out. The possession of one co-heir is
considered, in law, as possession of all the co-
heirs. When one co-heir is found to be in
possession of the properties, it is presumed to be
S.A. 136/1994. 39
one the basis of joint title. The co-heir in
possession cannot render his possession adverse
to the other co-heir, not in possession, merely by
any secret hostile animus on his own part in
derogation of the other co-heirs title. It is a
settled rule of law that as between co-heirs thee
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.
The burden of making out ouster is on
the person claiming to displace the lawful title of a
co-heir by his adverse possession.
A Receiver is an officer of Court and is
not a particular agent of any party to the suit,
notwithstanding that in law his possession is
ultimately treated as possession of the successful
party on the termination of the suit. To treat such
Receiver as plaintiff’s agent for the purpose of
initiating adverse possession by the plaintiff would
be to impute wrong doing totheCourt and its
officers. The doctrine of Receiver’s possession
being that of the successful party cannot be
pushed to the extent of enabling a person who
was initially out of possession to claim the tacking
S.A. 136/1994. 40
on of Receiver’s possession to his subsequent
adverse possession.”
37. In the decision in Kunhamina Umma v.
Special Tahsildar (AIR 1977 Kerala 41) it was held as
follows:
“The principle that the sole possession and
enjoyment of the profits of the property will not
constitute ouster as regards the other co-owners
can hardly apply where possession has continued
for a considerable period of time exclusively with
one co-owner and prima facie to the exclusion of
other or others.
If the one co-owner takes possession and
continues in possession for a long time enjoying
the income of the property without sharing it with
other co-owner it is a strong circumstance
indicative of, or from which an inference can be
drawn, that there was ouster of the co-owners not
in possession; and if other circumstances also
exist in support of this, courts will be justified in
inferring ouster or exclusion.”
38. It is unnecessary to refer to all the decisions
cited by the learned counsel for the respondents.
S.A. 136/1994. 41
39. The principle is very clear. Normally, the
courts are very shy to accept the claim of adverse
possession by one co-owner against another co-owner. A
high degree of proof is required regarding ouster of other co-
owners. Merely because there is no participation of
management or the sharing of income by itself are not
sufficient to constitute ouster. There must be evidence of
clear indication on the part of the co-owner in possession
asserting his title and holding the property adverse to the
interest of the other co-owners and the other co-owners
remain passive.
40. Keeping the above principles in mind, an
attempt shall now be made to see whether the plea of
adverse possession and limitation in the case on hand is
established.
41. Ext. A1 is the document by which the first
plaintiff obtained the jenm right over the property. Relevant
recital reads as follows:
S.A. 136/1994. 42
“……..
……..”
42. According to learned counsel for the
appellant, the word (in succession) indicates
that the acquisition made was for and on behalf of the co-
owners. It is not possible to say so. The word
only shows continuity of possession. That is clear from the
subsequent words used in the recital. On a reading of the
document as a whole it would be very evident that the
claim was that the property was outstanding with the first
plaintiff and late Kadir Pillai. This clearly shows that after
the death of Kunji Marakkar, the first plaintiff and late Kadir
S.A. 136/1994. 43
Pillai had asserted their exclusive right, possession and
enjoyment over the suit properties. Next is the suit by Abdul
Rahiman regarding item No.2 to the plaint. There, late Kadir
Pillai and defendants 1 and 2 in the present case were made
as defendants. It is true that Kadir Pillai said in the written
statement that possession regarding item No.2 was as
agreed to by all the sharers. But then one has to notice the
suit filed by Muhammed, the son of Kunju Marakkar through
his second wife, which was a suit for partition. It is here that
Exts.B2 and B3 assumes significance. They are the written
statements of the first plaintiff and late Kadir Pillai. In the
said suit all the legal heirs of Kunju Marakkar were on the
party array, but except defendants 1 and 2, others chose to
remain ex-parte. In that suit, the written statement filed by
Kadir Pillai and the first plaintiff in no uncertain terms
declared that they were in possession of the property
involved in the suit to the exclusion of all others. This is
followed by the mutual release of rights by late Kadir Pillai
and the first plaintiff.
S.A. 136/1994. 44
43. One may now have a perusal of the release
obtained by the first plaintiff. He now asserts that all the
legal heirs of Kunju Marakkar entitled to the suit properties.
In respect of 69 = cents he was clever enough to get release
deed executed by late Kadir Pillai and then stealthily
obtained release deeds from other co-sharers. Exts.A5, A6,
A7, and A8 are termed as Ozhimuri (release deeds). A
reading of those documents will show that there was no
particular assertion of rights by those assignors and they
only say that their nominal interest over the properties were
being released in favour of the first plaintiff. If as a matter
of fact those co-sharers were asserting their rights, the word
‘nominal’ would not have been used. If they know that they
had definite rights over the suit property and if they were
asserting their rights, they would have taken care in so
many words the actual share and right that were being
released.
44. It is true that in Ext.A5 document, the first
plaintiff was clever enough to mention Kunju Marakkar’s
S.A. 136/1994. 45
(legal heirs of Kunju Marakkar). That too was
certainly with the oblique motive. There is absolutely
nothing on record to show that any of the legal heirs of
Kunju Marakkar except the first plaintiff had ever asserted
any rights over the suit properties. It is also significant to
note that none of them have come forward to give evidence
in the case. The first plaintiff was careful enough to include
the recital in the document executed between him and Kadir
Pillai that after the death of Kunju Marakkar they held the
properties to the exclusion of all other co-owners and after
doing so, he then obtained release deed from other co-
sharers.
45. There is nothing to show that after the release
deed in his favour, any of the co-sharers had ever asserted
any right over the portion of the property held by Kadir
Pillai. As per Ext.B1, late Kadir Pillai transferred 49 cents to
his wife. They put up a building therein and have been
residing in the property for the last 25 years. There can be
S.A. 136/1994. 46
no doubt that Kadir Pillai was asserting rights in derogation
or the rights of the other co-owners.
46. As rightly pointed out by the learned counsel
appearing for the respondents Sri. Jayasurya it is not
necessary to resort to belligerent acts against other co-
owners to assert hostile possession. If one co-owner
exclusively possesses the properties and enjoys it for many
years, and there is no evidence of sharing of profits or
income and there is no conduct from the other side of any
indication or assertion of their rights, the necessary animus
can be presumed and the possession becomes adverse.
This principle is followed in some of the decisions cited by
the learned counsel for the respondents. It is true that the
burden is on the person who asserts adverse possession and
limitation. More so, in the case of a co-owner. But the facts
revealed in this case would show that right from the day of
execution of Ext. A1, that is 28.6.1957, at any rate from the
day on which late Kadir Pillai and the first plaintiff filed
written statements in O.S. 513 of 1964 they had declared
S.A. 136/1994. 47
that the suit properties exclusively belonged to them. It is
evident that the attempt on the part of the first plaintiff is to
divest defendants 7 to 13 of the properties that late Kadir
Pillai possessed and enjoyed. It is significant to notice that
Kadir Pillai died in 1980 and the suit is filed in 1981. One
cannot forget to notice that Kunju Marakkar died in 1949 and
the suit had been brought 32 years thereafter. One may
notice that all the other co-sharers except the first plaintiff
and late Kadir Pillai had not asserted any manner of right
over the suit properties. It is very clear that the first plaintiff
was waiting for Kadir Pillai to leave the world to institute the
suit. It is unfortunate that the first plaintiff’s attempt is to
deprive the widow and children of Kadir Pillai of their
properties. This is fortified by the fact that none of the legal
heirs of Kunju Marakkar had ever shown any interest in the
suit properties or at any point of time shared the income
from the properties. There is also nothing to show that they
had asserted any manner of right over the suit properties.
In the suit also, at the risk of repetition, they have not come
S.A. 136/1994. 48
forward to give evidence. In the suit, the first plaintiff who
had already acquired 69 = cents is now trying to deprive the
legal heirs of Kadir Pillai of the properties, which legitimately
belong to them.
47. Further, the conduct of the first plaintiff and
the other plaintiffs are such that they had at no point of time
asserted any manner of right over the suit properties.
Passive conduct on the part of the other legal heirs, if Kadir
Pillai treated the properties as his own, it cannot be found
fault with. The silence on the part of the other co-sharers
constituted a position which made Kadir Pillai to believe that
they are not asserting any manner of right over the suit
properties. Kadir Pillai and his legal heirs are entitled to
treat the silence or inaction on the part of other co-sharers
leading to the belief that they were claiming no right over
the suit properties. Where a person having title, right or
claim to the properties perceives that another person is
innocently and in ignorance, conducting himself with
reference to the property in a manner inconsistent with such
S.A. 136/1994. 49
title, right or claim, it is the duty of the former to undeceive
the other party forthwith; if he omits to do so, and if all the
other conditions of a valid estoppel are satisfied, he is
precluded from exercising or asserting his right or title or
claim as against such other party on any subsequent
occasion.
48. It is after 32 long years that the suit has been
brought. From 1949 onwards it appears that the first
plaintiff and late Kadir Pillai alone were enjoying the
properties and there is nothing to indicate that there is any
sharing of income or profits from the properties. All this
while the other legal heirs stood by and watched. Merely
because unlike in the case of first plaintiff, late Kadir Pillai
did not take release deeds from other shares does not mean
that the other co-sharers had any manner of rights over the
properties. The entire evidence will have to be appreciated
keeping in mind the circumstances and the conduct of the
parties. Equitable principle may have to be applied. If strict
letter of law leads to gross injustice, the courts standing
S.A. 136/1994. 50
within the frontiers of law are competent to mould the reliefs
so as to redress the grievances of the really aggrieved
person. Viewed from this angle, the findings of the lower
appellate courts are fully justified. The lower appellate court
was correct in holding that the properties belonged to late
Kadir Pillai exclusively. The result is that this appeal is
without merits and it is liable to be dismissed. I do so.
However, there will be no order as to costs.
P. BHAVADASAN,
JUDGE
sb.