IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 834 of 2002(G)
1. VISALAKSHY, SHAJI BHAVAN, ELAMKULAM,
... Petitioner
2. SREEDHARAN OF DO. DO.
3. SARASWATHY, CHARUVILA VEEDU,
4. VILASINI, OF DO. DO.
5. ASOKAN, OF DO. DO.
6. VASANTHARAN, OF DO. DO.
7. SULOCHANA, OF DO. DO. DO.
Vs
1. NADARAJAN, MUNDUM THALACKAL VEEDU,
... Respondent
2. CHANDRARAJAN, OF DO. DO.
3. THANKAMMA, OF DO. DO.
4. SASIDHARAN, KUNIL VEEDU,
5. RETNAMMA, MURIKAVILASAM, KOTTACKERAM,
6. OMANA, PUTHUVAL PUTHEN VEEDU,
7. ASOKAN, OF DO. DO.
8. VASANTHA RAJAN, OF DO. DO.
9. VILASINI, OF DO. DO.
10. SULOCHANA, SYAM NIVAS, KOTTAPPURAM,
11. SANTHAKUMARI, BHARGAVAN BHAVAN,
12. SYAMALAKUMARI, AGED 45 YEARS,
13. B.SYAMSUDHA, AGED 23 YEARS, OF DO. DO.
14. B.SYAM, AGED 21 YEARS, OF DO. DO. DO.
15. OMANA, CHARUVILA VEEEDU, KOTTACKERAM,
For Petitioner :SRI.V.PREMCHAND
For Respondent :SRI.A.P.CHANDRASEKHARAN (SR.)
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :05/06/2008
O R D E R
K.P. Balachandran, J.
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S.A.No. 834 of 2002
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JUDGMENT
Defendants 5 and 6 and the legal representatives
of the deceased seventh defendant, who were
respectively appellants 1 and 2 and additional
appellants 4 to 9 in A.S.No.171/96 on the file of
the District Court, Kollam, filed assailing the
judgment and decree passed by the trial court, are
the appellants in this second appeal, assailing the
concurrent decrees and judgments passed by the
courts below.
2. The first respondent, who was the original
plaintiff, instituted O.S.No.515/91 on the file of
the Munsiff’s Court, Paravoor in Kollam District
for a decree of declaration and partition, inter
alia on the allegations that the scheduled
properties of one acre and thirty three cents
comprised in Sy.No.11062 of Parippally Village with
the adjoining property of 53 cents belonged to
Velayudhan Raman; that he executed mortgage in 1103
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and 1121 M.E.; that the mortgage right later got
vested with Kochappi Janaki, the wife of the
seventh defendant and the mother of defendants 5
and 8 to 13 vide Document No.2233/1121; that the
jenmi Velayudhan Raman expired and the jenm right
devolved on his children Neelakandan, Kesavan,
Velu, Padmanabhan and Raghavan, each being entitled
to 1/5 share; that while so, on 16.8.1963, the
mortgagee Kochappi Janaki executed Exhibit A7
Release Deed in favour of the children of Raman;
that as per Exhibit A8, the children of Raman,
namely, Neelakantan and others, executed sale deed
in favour of Kochappi Janaki with respect to 53
cents of property from out of one acre and eighty
six cents, which stood under mortgage originally;
that Raman Neelakantan and Raman Kesavan died and
their rights devolved on their children (ten
children each); that Raman Padmanabhan and Raman
Raghavan died unmarried and issue less at Singapore
after the death of Neelakantan and Kesavan; that
SA 834/01 3
the only surviving brother Raman Velu was the legal
heir of Raghavan and Padmanabhan; that Raman Velu
and the legal heirs of late Neelakantan and Kesavan
were in possession of the scheduled property paying
tax; that on 11.1.1979, Raman Velu, Neelakantan,
Dharmarajan and Kesavan Parameswaran executed
Exhibit A1 sale deed in favour of the plaintiff in
relation to the scheduled property and handed over
Exhibit A7 release deed; that ever thereafter, the
plaintiff is in possession of the said property;
that he has constructed a shed as a prelude to the
construction of a house for which the foundation
has also been put up; that he also made other
improvements in the property; that Kochappi Janaki,
her husband the seventh defendant and their
children were not happy with the purchase of the
property by the plaintiff and they attempted to
block the pathway to the property and attempted to
trespass upon the scheduled property and that
thereupon, the plaintiff filed O.S.No.52/79 against
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defendants 5 to 7 and Kochappi Janaki; that they
contended that they are in possession of the
scheduled property on the basis of oral lease; that
they filed SMP 15/79 before the Special Tahsildar,
Kollam, but that was dismissed; that appeal filed
before the Appellate Authority, Attingal as A.A.No.
126/80 was also dismissed; that therefore, the
fifth defendant cannot contend that she has got
oral lease of the scheduled property and that claim
is barred by res judicata and estoppel; that O.S.
No.52/79 was dismissed; that the appeal and the
second appeal filed therefrom were also dismissed,
but, while disposing of the appeal, the District
Court directed that the plaintiff may prefer a suit
for partition and hence the suit. The plaintiff
further alleged that five children of deceased
Velayudhan Raman had 10/50 share each over the
plaint schedule property and ten children each of
Neelakantan and Kesavan got 1/50 share each and
Raman Velu got 3/5 share, which is equal to 30/50,
SA 834/01 5
including the rights of his brothers Padmanabhan
and Raghavan, who died unmarried and issue less;
that as per Exhibit A1 sale deed, he got 30/50
share of Raman Velu and 1/50 share each of
Neelakantan Dharmarajan and Kesavan Parameswaran;
that Kesavan Damodaran and Kesavan Kamalabhai sold
their 2/50 share in favour of the plaintiff as per
Exhibit A2; that Kesavan Yesoda sold her 1/50 share
to the plaintiff as per Exhibit A3; that Maniamma,
Santhakumari and Somaraja and other children of
Neelakantan also sold their 3/50 right to the
plaintiff as per Exhibit A4 sale deed; that Kesavan
Chandran sold his 1/50 share to the plaintiff as
per Exhibit A5; that Bharatharajan, Nalini and
Leela sold their 1/50 share each in favour of the
plaintiff as per Exhibit A6; that Balakrishnan,
Gopi, Sarada and Sarasamma, the children of Kesavan
sold their right in favour of the fourth defendant
and on the basis of that the fourth defendant filed
O.S.No.433/80; that defendants 1 to 3 have got 1/50
SA 834/01 6
share each from the scheduled property and the
remaining 47/50 share belongs to the plaintiff and
therefore, the plaintiff’s 47/50 share has to be
declared and the property has to be partitioned and
separate possession of his share has to be allotted
to him. It is further prayed that if any portion
of the property that falls to the share of the
plaintiff is found to be in possession of
defendants 4 to 6 and Kochappi Janaki, recovery
thereof has to be allowed with mesne profits.
3. Defendants 5 to 7 resisted the suit. All
other defendants remained ex parte. Defendants 5
to 7 contended that all the sale deeds relied on by
the plaintiff are sham documents and were executed
without any consideration; that the scheduled
property is possessed by the fifth defendant
effecting improvements and taking yield from 1963
onwards continuously and uninterruptedly as per an
oral lease; that the sixth defendant, being the
husband of the fifth defendant, is also in
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possession and enjoyment of the said property; that
the sale deeds in favour of the plaintiff were got
executed fraudulently; that the fifth defendant’s
mother Janaki got possession of the properties
extending to 1.86 acres, including 53 cents as per
a mortgage of the year 1121 M.E.; that the said
mortgage right happened to be redeemed just for
name sake; that the fifth defendant has continued
to be in possession as lessee and the original
landlords never came to possess the property as per
the release deed; that the plaintiff attempted to
trespass into the property and put up thatched hut;
that defendants 5 and 6 made a complaint to the
police and the police registered case against that;
that thereupon, the plaintiff filed O.S.No.52/79
and that has been dismissed; that the appeal and
the second appeal filed therefrom were also
dismissed; that possession and enjoyment of the
properties by defendants 5 and 6 is continuous and
uninterrupted; that the plaintiff has no right to
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challenge the rights of the defendants and that the
suit is barred by res judicata by the decision in
O.S.No.52/79.
4. The trial court raised necessary issues for
trial on the basis of the above pleading and
considering the evidence adduced at trial, which
consisted of oral evidence of PWs 1 and 2 and DWs1
to 4 and documentary evidence Exhibits A1 to A17
and B1 to B5, decreed the suit, declaring that the
plaintiff is entitled to 43/50 share in the
scheduled property and allowed partition and
separate possession of plaintiff’s share and for
recovery thereof with mesne profits from the
contesting respondents. It was also made clear
that the fifth defendant is liable for mesne
profits from the date of the suit, the quantum of
which will be assessed during the final decree
proceedings. It was further made clear that the
plaintiff shall be entitled to right of way to the
property that may be allotted to his share and
SA 834/01 9
covered by Exhibits A7 and A8 documents.
Defendants 5 to 7 were also made liable for the
cost of the suit.
5. Aggrieved by the decree of the trial court,
defendants 5 to 7 filed A.S.No.171/96 against the
plaintiff and other defendants in the suit. The
seventh defendant, who was the third appellant,
died pending the said appeal and his legal
representatives were impleaded as additional
appellants 4 to 9. Similarly, the original
plaintiff, who was the first respondent, also died
and his legal representatives were impleaded as
additional respondents 13 to 15. The first
appellate court considered the appeal on merits and
concurring with the findings of the trial court,
dismissed the said appeal and hence this second
appeal by the aggrieved appellants.
6. When the matter came up for admission
hearing, the only contention that was advanced
before me by the learned counsel for the
SA 834/01 10
appellants, assailing the concurrent verdicts
passed by the courts below is that the courts below
have negatived the claim of adverse possession
advanced by the fifth defendant assigning the
reason that there is no sufficient plea in the
written statement, which enables a plea of adverse
possession being urged and considered. According
to him, it is pleaded in the written statement that
right from 1963 onwards, the fifth defendant was in
absolute and exclusive possession of the scheduled
property to the knowledge of the plaintiff and that
the documents relied on by the plaintiff, including
Exhibit A7 release deed, are sham documents. All
the same, counsel for the appellant submits that
the fifth defendant has no case that Exhibit A7
release deed is sham or void. The counsel for the
appellant has passed on to me for perusal a copy of
the written statement filed jointly by defendants 5
to 7 wherein, it is contended that on the very date
of Exhibits A7 and A8, namely, the release deed in
SA 834/01 11
favour of the landlords executed by Janaki and the
sale deed executed in favour of Janaki in relation
to 53 cents from out of the property covered by the
mortgage, the children of Velayudhan Raman, in whom
the jenm rights have got vested, had given to the
fifth defendant the entire scheduled property by
way of lease and it is ever thereafter that she is
in exclusive possession and enjoyment of the
property.
7. When a contention is raised by the fifth
defendant that she has come into occupation of the
property under a lease, it pre-supposes that she
has no case of her having come into wrongful
possession of the scheduled property. A party, who
sets up a case that he has come into permissive
possession of a property, cannot be heard to
contend that his possession has turned to be
adverse and that she has perfected title by adverse
possession and limitation. In fact, in the written
statement, there is no contention to the effect
SA 834/01 12
that permissive possession, at any point of time,
turned to be adverse to the rights of the real
owners in any manner whatsoever. There is,
therefore, no merit in the contention that the
courts below were repelling the contention of
adverse possession on the ground that there is no
sufficient pleadings to have such a contention
considered. In fact, when permissive possession is
alleged, that is sufficient ground to repel the
contention of adverse possession. No other point
was urged before me by the learned counsel for the
appellants. There is absolutely no question of law
and much less, any substantial question of law to
be considered by this Court in this second appeal.
The Second Appeal, in the circumstances, is
dismissed in limine, refusing admission.
5th June, 2008 (K.P.Balachandran, Judge)
tkv
SA 834/01 13
K.P.Balachandran, J.
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S.A.No.834 of 2001
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JUDGMENT
5th June, 2008