Kerala High Court
State Of Kerala vs Meera, (Deleted) on 17 July, 2025
2025:KER:52631
R.S.A.No.502/2011
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 17TH DAY OF JULY 2025 / 26TH ASHADHA, 1947
RSA NO. 502 OF 2011
AGAINST THE JUDGMENT AND DECREE DATED 08.10.2010 IN AS
NO.103 OF 2007 OF DISTRICT COURT, ERNAKULAM ARISING OUT OF
THE JUDGMENT DATED 22.12.2005 IN OS NO.92 OF 2003 OF MUNSIFF
COURT,MUVATTUPUZHA
APPELLANTS/RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
DISTRICT COLLECTOR, ERNAKULAM DISTRICT.
2 THE PRINCIPAL GOVERNMENT VOCATIONAL
HIGHER SECONDARY SCHOOL, PALLARIMANGALAM.
BY ADVS.
SRI.K.GOPALAKRISHNA KURUP, AG
SRI.DENNY DEVASSY, GOVERNMENT PLEADER
SRI.V.MANU., SPL.G.P.
RESPONDENTS/APPELLANTS/PLAINTIFF:
*1 MEERA, (DELETED)
W/O.LATE KUNHAHEMMED IBRAHIM, KLLUMPURATH HOUSE,
KOOVALLOOR DESOM,, POTHANICAD VILLAGE,
KOTHAMANGALAM TALUK,, KOOVALLOR.P.O, PIN - 686
671.
*1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY OF
APPEAL AT THE RISK OF THE APPELLANTS AS PER ORDER
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R.S.A.No.502/2011
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DATED 18.09.2019 IN IA.2/2019.
2 PATHUMMA, W/O. SETHUPPA AND D/O. LATE KUNHAMMED
IBRAHIM,, KLLUMPURATH HOUSE, KOOVALLOOR DESOM,,
POTHANICAD VILLAGE, KOTHAMANGALAM TALUK,,
KOOVALLOR.P.O, PIN - 686 671.
3 ISHA, W/O.P.K. ALYAR & D/O. LATE KUNHAMMED
IBRAHIM,, KLLUMPURATH HOUSE, KOOVALLOOR DESOM,,
POTHANICAD VILLAGE, KOTHAMANGALAM TALUK,,
KOOVALLOR.P.O, PIN - 686 671.
4 NABEESA, W/O. ABDUL KHADER & D/O. LATE KUNHAMMED
IBRAHIM,, KLLUMPURATH HOUSE, KOOVALLOOR DESOM,,
POTHANICAD VILLAGE, KOTHAMANGALAM TALUK,,
KOOVALLOR.P.O, PIN - 686 671.
5 SAIDU MOHAMMED
S/O. LATE KUNHAMMED IBRAHIM,, KLLUMPURATH HOUSE,
KOOVALLOOR DESOM,, POTHANICAD VILLAGE,
KOTHAMANGALAM TALUK,, KOOVALLOR.P.O, PIN - 686
671.
6 MOHAMMEIDALI
S/O. LATE KUNHAMMED IBRAHIM,, KLLUMPURATH HOUSE,
KOOVALLOOR DESOM,, POTHANICAD VILLAGE,
KOTHAMANGALAM TALUK,, KOOVALLOR.P.O, PIN - 686
671.
7 YOUSUF
S/O. LATE KUNHAMMED IBRAHIM,, KLLUMPURATH HOUSE,
KOOVALLOOR DESOM,, POTHANICAD VILLAGE,
KOTHAMANGALAM TALUK,, KOOVALLOR.P.O, PIN - 686
671.
8 SULEKHA WO. SINUDHEEN AND
D/O. LATE KUNHAMMED IBRAHIM,, KLLUMPURATH HOUSE,
KOOVALLOOR DESOM,, POTHANICAD VILLAGE,
KOTHAMANGALAM TALUK,, KOOVALLOR.P.O, PIN - 686
671.
9 REKHIYA
D/O. LATE KUNHAMMED IBRAHIM, KLLUMPURATH HOUSE,,
2025:KER:52631
R.S.A.No.502/2011
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KOOVALLOOR DESOM,, POTHANICAD VILLAGE,
KOTHAMANGALAM TALUK,, KOOVALLOR.P.O, PIN - 686
671.
10 RAHIM
S/O. LATE KUNHAMMED IBRAHIM,KLLUMPURATH HOUSE,,
KOOVALLOOR DESOM,, POTHANICAD VILLAGE,
KOTHAMANGALAM TALUK,, KOOVALLOR.P.O, PIN - 686
671.
BY ADVS.
SHRI.VARGHESE C.KURIAKOSE
SRI.ADEEP ANWAR
SRI.T.KRISHNANUNNI (SR.)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
01.07.2025, THE COURT ON 17.07.2025 DAY DELIVERED THE
FOLLOWING:
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R.S.A.No.502/2011
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EASWARAN S.,J.
---------------------------
R.S.A No.502 of 2011
---------------------------
Dated this the 17th day of July, 2025
JUDGMENT
The State of Kerala has come up with this appeal, aggrieved by the judgment dated 08.10.2010 of the District Court, Ernakulam in reversing the dismissal of suit in O.S.No.92/2003 on the files of the Munsiff's Court, Muvattupuzha.
2. The brief facts necessary for the disposal of the appeal are as follows:-
The respondents / plaintiffs filed a suit for fixation of boundary, injunction and an alternative prayer for recovery of possession. According to them, one Kunjahammed Ibrahim obtained 65 cents of property by virtue of partition deed No.2876/1960. During his life time, he alienated 3 cents and the remaining property is described in the plaint 2025:KER:52631 R.S.A.No.502/2011 5 schedule devolved upon the plaintiffs after the death of Kunjahemmed Ibrahim. The properties on the western and northern boundary of the plaint schedule property are the property in which the Government Vocational Higher Secondary School, Pallarimangalam is situated. The boundaries, which demarcated the plaint schedule property and the school property, are not conspicuous and that there is a controversy regarding the boundary and possession of the plaint schedule property. The Government takes a stand that the property scheduled in the plaint is their property, which was handed over to them by one Haji Ismail Pareed.
The suit was resisted on the ground that the said Ismail Pareed had surrendered the school property to the Government and executed a sale deed No.1005/1963 in favour of the Educational Department and that from 1952 onwards, the property is lying in their possession. On behalf of the plaintiffs, PW1 to PW4 were examined and Exts.A1 to A4 were marked. On behalf of the defendants, Exts.B1 and 2025:KER:52631 R.S.A.No.502/2011 6 B2 were marked and Exts.C1, C1(a) C2 and C2(a) were marked. The Trial Court, on the basis of the pleadings and documentary evidence, framed the following issues:-
1) Whether the plaintiffs have title over the plaint schedule property ?
2) Is the declaration prayed for allowable?
3) Whether the prayer for fixation of boundary is allowable?
4) Whether the injunction prayed for is
allowable?
5) Reliefs and costs?
On an appreciation of the oral and documentary evidence, the Trial Court found that the contention of the plaintiffs that Ext.B1 document was a fabricated document cannot be accepted and accordingly, they found that plaintiffs had the knowledge of the construction of the school in the plaint schedule property and therefore, dismissed the suit. On appeal, the District Court, Ernakulam found that the findings of the Trial Court that Ext.B1 is a forged document lacks probability and would confer title on the Government and the 2025:KER:52631 R.S.A.No.502/2011 7 plea of adverse possession will not go together and hence, reversed the findings of the Trial Court and decreed the suit.
As regards the prayer for recovery of possession, the prayer was declined and only the fixation of boundary was granted.
3. Heard Sri.K.Gopalakrishna Kurup, the learned Advocate General, assisted by Sri.V.Manu, the learned Special Government Pleader to AG and Sri.K.Denny Devassy, the learned Senior Government Pleader on behalf of the appellants and Sri.Varghese C.Kuriakose, the learned counsel for the respondents.
4. The learned Advocate General, on behalf of the State, contended that the findings of the first appellate court are erroneous. The Government held the property based on Ext.B1. The first appellate court has not interfered with the findings of the Trial Court as regards the validity of Ext.B1. The plea of the plaintiffs that Ext.B1 is a forged document, being not accepted, the possession of the State over the property must be upheld. The Advocate General further 2025:KER:52631 R.S.A.No.502/2011 8 pointed out that even if it is assumed that the Government is in possession based on an invalid grant, even then, its possession is protected. The plea of adverse possession was raised as an alternative plea. In support of his contentions, he relied upon the decisions of this Court in Kurungottukandi Rarichakutty K.T. vs. Aranda Rarichan and Others (2018 (5) KHC 599), L.N.Aswathama and Another vs. P.Prakash (2009 KHC 5996) and a decision of the apex court in State of West Bengal vs. The Dalhousie Institute Society (1970 (3) SCC 802).
5. Per contra, Sri.Varghese C.Kuriakose, the learned counsel appearing for the respondents/plaintiffs, vehemently opposed the arguments of the Advocate General and pointed out that the prior document of title is the partition deed of the plaintiffs in the year 1960. Any subsequent grant by a person without any authority of law will not confer any right, title and interest over the property in favour of the 1 st 2025:KER:52631 R.S.A.No.502/2011 9 appellant / State. Though a portion of the school building was constructed by encroaching upon the plaint schedule property, the plaintiffs had relinquished the claim for recovery of possession and had sought only for fixation of boundary and that the report of the Advocate Commissioner clearly shows the nature and lay of the property. It is contended that there is no clear-cut boundary between the plaint schedule property and that of the school and it is precisely the reason why the plaintiffs confined their prayer to the fixation of the boundary.
6. I have considered the rival submissions raised across the bar and perused the judgment and decree of the courts below and the records in the present appeal.
7. When the appeal was admitted to file, this Court had framed the following question of law:-
"When the respondents specifically contended in the written statement that the plaint schedule property was entrusted by Kallumpurath Mytheen Kunhammed to the then Manager of the School for the purpose of the school free of cost during 1107 2025:KER:52631 R.S.A.No.502/2011 10 ME, was the courts below justified in not framing an issue on that plea and not considering the question and granting a decree on favour of the respondents."
8. The question, which falls for consideration before this Court, is as to whether the plaintiffs had succeeded in establishing their plea in order to seek the decree for fixation of boundary and recovery of possession. The specific case pleaded by the State is that on 07.11.1118 ME, one Makkar Ummar was elected as the Manager of the school and in the year 1107 ME, one Kallumpurath Mytheen Kunhammed, the father-in-law of the present plaintiffs handed over 75 cents of land comprised in Survey No.599/B to Ismail Pareed, the Manager of the school free of cost and the committee constructed the school building therein. Later, the LP school was surrendered to the Government during 1948 as per Order No.DIS/12113/49 dated 11.05.1951. It is, thereafter, the Kallumpurath Haji Ismail Pareed handed over the school to the Government as per Ext.B1. The specific case set up by the plaintiffs is that, the Government did not derive any right 2025:KER:52631 R.S.A.No.502/2011 11 title and interest over the property by virtue of the deed No.1005 of 1963 since the vendor did not have the right title and interest to be conveyed to the Government because of the existence of the partition deed, Ext.A1. However, the Trial Court found that the argument of the plaintiffs that Ext.B1 is a forged document was not substantiated by adducing any evidence. The first appellate court has not interfered with the said finding, but proceeded to hold that a plea based on Ext.B1 and a plea regarding adverse possession will not go together. Pertinent to mention that the plaintiffs have not come up with an appeal against the said finding.
9. Further question is, whether the finding of the lower appellate court that the plea based on title and adverse possession will not go together can be sustained or not? It must be remembered that the State had advanced the plea of adverse possession as an alternate plea.
10. A Division Bench of this Court in Kurungottukandi 2025:KER:52631 R.S.A.No.502/2011 12 Rarichakutty K.T. vs. Aranda Rarichan and Others (2018 (5) KHC 599) held that a plea of adverse possession as an alternate plea is permissible. Paragraph 5 of the judgment reads as under:-
"5. Coming to plea of title and adverse possession, it is to be noticed that alternate pleas are essentially different from inconsistent pleas. Inconsistent pleas do not go together. A plea of title and adverse possession would, in certain situations partake the character of alternate pleas, and in certain circumstances, of inconsistent pleas. When the defendant claims a derivative title under the plaintiff, his auxiliary claim for adverse possession against the plaintiff militates against each other and are inconsistent pleas. However, in a case where the defendant traces title under a third party and resists the suit on the strength of the said title and as an alternative, raise a plea of adverse possession against the plaintiff, it is a case of alternative plea. The latter is permissible. In L.N. Aswathama and Another v.P. Prakash, 2009 KHC 5996:
2009 (13) SCC 229 : 2010 (1) KCCR 113 : 2009 (3) CHN 162 the Apex Court held:
"As the defendant therein admitted that he came into possession lawfully under an agreement of sale and continue to remain in such possession, there was no adverse possession. This case is different, as the 2025:KER:52631 R.S.A.No.502/2011 13 defendant did not contend that he entered possession under or through the plaintiffs........... When a person is in possession ascertaining to be the owner, even if he fails to establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts."
11. In L.N.Aswathama and Another vs. P.Prakash (2009 KHC 5996), the Supreme Court held that the alternate plea of adverse possession is perfectly maintainable. Paragraph 17 of the said decision is extracted hereunder:-
"17. The legal position is no doubt well settled. To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical / actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter 2025:KER:52631 R.S.A.No.502/2011 14 does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence. (Vide : Periasami v. P. Periathambi, 1995 (6) SCC 523, Md. Mohammad Ali (dead) by LRs. v. Jagdish Kalita, 2004 (1) SCC 271 and P. T. Munichikkanna Reddy v. Revamma, 2007 (6) SCC
59."
12. Therefore, it is clear that the findings of the lower appellate court cannot be sustained. If that be so, what should be the consequences?. Pertinently, the plea of the plaintiff that Ext B1 is a fabricated document was not accepted by the lower appellate court. If Ext B1 stands as such, then the possession of the state if protected.
13. In State of West Bengal vs. the Dalhousie Institute Society (1970 (3) SCC 802), the plea of adverse possession based on an invalid grant was considered by the Supreme Court and it was held that even in a case of an invalid grant, the plea of adverse possession is maintainable. Paragraph 16 is extracted hereunder:-
2025:KER:52631 R.S.A.No.502/2011 15 "16. There is no material placed before us to show that the grant has been made in the manner required by law though as a fact a grant of the site has been made in favour of the Institute. The evidence relied on by the Special Land Acquisition Judge and the High Court also clearly establishes that the respondent has been in open, continuous and uninterrupted possession and enjoyment of the site for over 60 years. In this respect the material documentary evidence referred to by the High Court clearly establishes that the respondent has been treated as owner of the site not only by the Corporation, but also by the Government. The possession of the respondent must have been on the basis of the grant made by the Government, which no doubt, is invalid in law. As to what exactly is the legal effect of such possession has been considered by this Court in Collector of Bombay v. Municipal Corpn. of the City of Bombay, 1952 SCR 43 : (AIR 1951 SC 469) as follows :
"... the position of the respondent Corporation and its predecessor in title was that of a person having no legal title but nevertheless holding possession of the land under colour of an invalid grant of the land in perpetuity and free from rent for the purpose of a market. Such possession not being referable to any legal title it was prima facie adverse to the legal title of the Government as owner of the land from the very moment the predecessor in title of the respondent 2025:KER:52631 R.S.A.No.502/2011 16 Corporation took possession of the land under the invalid grant. This possession has continued openly, as of right and uninterruptedly for over 70 years and the respondent Corporation has acquired the limited title to it and its predecessor in title had been prescribing for during all this period, that is to say, the right to hold the land in perpetuity free from rent but only for the purposes of a market in terms of the Government Resolution of 1865..."
14. Still further, a reading of the oral testimony of PW1 would show that he was aware of the existence of the school and further it is admitted that he had filed a suit in the year 1977 for injunction against the Government when the construction of the school building commenced. He has also come out that Ismail Pareed and Mytheen Kunhammed, the grandfather of the plaintiffs, were relatives. Therefore, the plaintiff did not have direct knowledge as regards the entrustment of the school property by their grandfather to the Ismail Pareed. But, however, it has come out in evidence that the plaintiffs have admitted that the school was entrusted with the Government in the year 1948. When a 2025:KER:52631 R.S.A.No.502/2011 17 specific query was reached by this Court as regards why the plaintiffs have not included the reliefs sought for in the present suit, in a suit which is stated to have been filed in the year 1997, it is explained by the learned counsel for the respondents that there is no pleading to that effect in anywhere in the plaint or in the written statement. However, the learned counsel could not dispel the doubts of the court as why the plaintiff in his oral testimony stated he was aware of the construction made by this school during the year 1977, but choose to keep silent and allowed the Government to occupy the plaint schedule property.
15. The pleadings and also the evidence adduced in the suit, makes it clear that, the plaintiffs were aware of the possession of the Government and did not choose to ascertain their title over their property. It must be noted that the Government assumed the possession of the plaint schedule property by virtue of grant Ext.B1 and prior to that in the year 1948. Therefore, by considering the plea of the 2025:KER:52631 R.S.A.No.502/2011 18 respondents, it was incumbent upon the Trial Court, to have framed an issue regarding the entrustment by Kallumpurath Mytheen Kunjahammed to the Ismail Pareed, free of cost during 1107 ME and granted relief in favour of the defendants.
16. However, the larger question is whether the non- framing of an issue is fatal to the case pleaded by the parties and for that matter, whether the suit must engage the attention of the trial court once again. From the pleadings and evidence adduced by the parties, it is evident that the parties were quite aware of the issues presented in the suit. It must be noticed that as against the plea of an oral entrustment in favour of Ismail Pareed by the grandfather of the plaintiffs, the plaintiffs' contention was that Ext.B1 is a fabricated document. No explanation is forthcoming as to why the suit was not immediately filed after execution of Ext.A1 or for that matter when the constructions commenced. The plea of the plaintiffs against Ext.B1 was 2025:KER:52631 R.S.A.No.502/2011 19 rejected by the Trial Court and the lower appellate court did not unseat the aforesaid finding. Except a vague assertion that Ext.B1 was executed after Ext.A1, no serious attempt was made to establish as to how Ext.B1 is a fabricated document.
17. The lower appellate court interfered with the finding of the Trial Court on the premise that an assertion based on the title as well as the plea of adverse possession, will not go together. Pertinently, when the findings of the Trial Court as regards the validity of Ext.B1 have not been interfered with, the assertion on the basis of an adverse possession which can only be viewed as an alternate plea, should not have been called into question by the first appellate court.
18. Viewed in the above perspective, this Court finds that, in the absence of any appeal by the plaintiffs against the findings of the first appellate court regarding the validity of Ext.B1 document, the non-framing of an issue as regards the oral entrustment have no consequences in as much as 2025:KER:52631 R.S.A.No.502/2011 20 the absence of challenge to the findings of the first appellate court against the plaintiffs regarding the validity of Ext.B1. Therefore, while answering the above question of law in favour of the appellant, this Court finds that the first appellate court erred egregiously in going to the question of adverse possession when it had not chosen to interfere with the findings of the Trial Court as regards as Ext.B1.
Resultantly, the appellants are entitled to succeed. Accordingly, this appeal is allowed reversing the judgment and decree of the District Court, Ernakulam in A.S.No.103/2007 and restoring the judgment and decree in O.S.No.92/2003 of the Munsiff's Court, Muvattupuzha. No costs.
Sd/-
EASWARAN S JUDGE bng