Kerala High Court
Narayana Pillai Thankappan Nair vs State Of Kerala on 14 February, 2008
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 401 of 2006(F)
1. NARAYANA PILLAI THANKAPPAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY ITS
... Respondent
2. DISTRICT MEDICAL OFFICER,
3. ARUVIKARA GRAMA PANCHAYAT,
For Petitioner :SRI.R.S.KALKURA
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/02/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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R.S.A. NO. 401 OF 2006
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Dated this the 14th day of February, 2008
JUDGMENT
Plaintiff in O.S.545/1999 on the file of Munsiff Court, Nedumangad is the appellant.
Respondents are the defendants. Third respondent Aruvikkara Grama Panchayath was subsequently impleaded as additional defendant as per order dated 29.6.2002. Plaint schedule property admittedly originally belonged to the tharwad of appellant. Tharwad properties were partitioned under Ext.A1 partition deed in 1952. Appellant was a minor at that time. As E schedule, along with other properties plaint schedule property was also allotted to the appellant. While he was a minor Ext.A2 sale deed was executed whereunder plaint schedule property was admittedly assigned to one Parameswaran Pillai Madhavan Pillai. That sale deed was executed by the father and brothers of the appellant. Though appellant also executed the R.S.A.401/2006 2 sale deed when it was registered, the Sub Registrar finding that appellant is a minor registered the document only in respect of the other executants.
According to appellant, he left the place thereafter and was not at his native place. It was alleged that when he returned it was found that on the strength of Ext.A2 sale deed an Ayurvedic Hospital is being constructed under second respondent and construction of the foundation is in progress. After sending a notice contending that respondents 1 and 2 have no right to construct the building in his property, appellant instituted the suit seeking a declaration that his right is not effected by Ext.A2 sale deed, and for recovery of possession of the plaint schedule property on the strength of his title. Respondents 1 and 2 filed a written statement contending that they are constructing an Ayurvedic hospital which is in progress and the property was surrendered to Aruvikkara Grama Panchayat by Kunjukrishna Pillai in 1992 and since then the property has been in the R.S.A.401/2006 3 possession and enjoyment of the Panchayat. It was also contended that as per the contentions in the plaint, appellant was not in possession of the property from 1954 and even if appellant has any right or title it is lost by adverse possession and limitation. It is based on the contention in the written statement, third respondent was subsequently impleaded as per order in I.A.4361/2001. Third respondent did not file a written statement.
2. Learned Munsiff on the evidence of Pws.1 to 3, and Exts.A1 to A8 found that though Ext.A2 sale deed was not registered in respect of the sale deed executed by appellant as he was shown as aged 17 years at that time, it is clear from the evidence that from the date of execution of Ext.A2 sale deed, the assignee thereunder Madhavan Pilla was in possession of the property. Appellant did not regain possession of the property subsequent to Ext.A2 and therefore the title of appellant was lost by adverse possession and limitation.
R.S.A.401/2006 4Appellant challenged the judgment before Sub Court, Nedumangad in A.S.63/2003. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal.
3. Learned counsel appearing for appellant was heard.
4. The argument of the learned counsel is that when the suit is for recovery of possession based on title, Article 65 of the Limitation Act 1963 governs the field and under Article 65 burden is on the respondents to establish that they have been in possession of the property adverse to the appellant for the requisite period and respondents 1 and 2 obtained possession from third respondent only in 1992 and third respondent did not file a written statement and did not claim adverse possession and possession of respondents 1 and 2 from 1992 is insufficient to uphold the plea of adverse possession as suit was instituted in 1992 and in the absence of evidence on the side of third R.S.A.401/2006 5 respondent that property was in their possession or the assignor of the third respondent, with the necessary animus to possess it as against the appellant, finding of the courts below that title of appellant is lost by adverse possession is unsustainable. Reliance was placed on the decision of the Apex Court in MD.Mohammad Ali v. Jagadish Kalita (2004) 1 SCC 271, Ramiah v. N.Narayana Reddy (2004) 7 SCC 541, and a Division Bench of this Court in George Thomas v. Geondy Joseph 2005 (1) KLT 864).
5. The position of law as canvassed by the learned counsel, based on Article 65 of the Limitation Act is perfectly correct. When the Limitation Act 1908 was holding the field, in view of Article 141 and 142, in a suit for recovery of possession based on title apart from title plaintiff has also to prove that he has been in possession of the property within a period of 12 years prior to the institution of the suit. But R.S.A.401/2006 6 after the enactment of Limitation Act 1963, Article 65 governs the field. When the suit is based on title, plaintiff need not prove that he has been in possession of the property within a period of 12 years prior to the institution of the suit. It is for the defendant to establish that plaintiff has been excluded from possession for a period of 12 years prior to the institution of the suit and necessarily it is for the respondents to prove that he or his predecessor in interest have been in possession of the property with the necessary animus to possess it as against the plaintiff to his knowledge for the requisite period. The question is different on the facts and evidence of the case.
6. It is the case of appellant himself that along with his father and brothers he also executed Ext.A1 sale deed in 1954. The only case of the appellant was that though he executed Ext.A2 sale deed, he being a minor the Sub Registrar refused to register the sale deed with regard to his transfer R.S.A.401/2006 7 and registered only against the other executants.
He has no case in the plaintor in the evidence as PW1 that Ext.A2 sale deed did not came into effect or that the assignee therein did not obtain possession of the properties shown in Ext.A2.
Ext.A2 shows that the properties assigned thereunder were handed over to the assignee by the assignor including the appellant, though he was a minor at that time. Appellant was only 16 years at that time. Appellant has no case that after attaining the majority in 1956 or 1957, he has been in joint possession of the property with the assignee who obtained possession of the properties under Ext.A2. On the other hand, paragraph 5 of the plaint itself shows that after execution of Ext.A2, appellant has not been in possession of the property. According to the allegations in the plaint he left the place some time after Ext.A2 and when he returned back he found that respondents are constructing a foundation for the purpose of construction of an Ayurvedic Hospital therein.
R.S.A.401/2006 8According to the evidence of appellant as PW1 that was subsequent to 1992. Therefore as rightly found by courts below, evidence establish that possession of the property was with the assignee from 1954 and even after attaining majority, appellant never cared to get possession of the property.
Eventhough being a minor it could be said that his right was not effected by Ext.A2 sale deed, when possession of the property was handed over under Ext.A2, unless possession is regained by appellant, from the assignee it cannot be said that appellant was continuing in possession of the property.
Eventhough no evidence was adduced by respondents, Ext.A2 establish that the property was continued to be in the possession of the assignee under Ext.A2. Till the Panchayat obtained the property in 1992 for the purpose of construction of the building appellant was excluded from possession. When appellant was one of the executants of Ext.A2, he cannot plead ignorance of the transfer of possession. When Ext.A2 shows R.S.A.401/2006 9 that the entire rights including that of the appellant was assigned to the assignee, the possession of the assignee under Ext.A2 thereafter could only be as the true owner and it is definitely against the appellant also. If that be so, findings of courts below that evidence establish that the assignee under Ext.A2 has been in possession of the property adverse to the title of appellant, and appellant thereby lost his title by adverse possession, as he did not claim back the property for 41 years is perfectly correct.
Appeal is dismissed in limine as there is no substantial question of law involved on the facts and evidence of the case.
M.SASIDHARAN NAMBIAR JUDGE tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT SEPTEMBER,2006