Nagappan Renjith Mohan vs Parvathi Savithiri on 3 April, 2009

[Cites 11, Cited by 0]

Kerala High Court

Nagappan Renjith Mohan vs Parvathi Savithiri on 3 April, 2009

Bench: K.P.Balachandran

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA.No. 40 of 1994(D)



1. NAGAPPAN RENJITH MOHAN
                      ...  Petitioner

                        Vs

1. PARVATHI SAVITHIRI
                       ...       Respondent

                For Petitioner  :SRI.M.R.ANANDAKUTTAN

                For Respondent  :SRI.T.KRISHNAN UNNI (SR.)

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :03/04/2009

 O R D E R

K.P.BALACHANDRAN, J.

------------------------------------------------

S. A. Nos.40 & 75 of 1994

------------------------------------------------ Dated this the 3rd day of April, 2009 COMMON JUDGMENT The appellant in S.A.No.40/94 is the first appellant in S.A.No.75/94 and the second appellant therein was his father who passed away pending appeal and his other legal heirs are impleaded as additional appellants 3 to 5. Respondents in both the second appeals are the legal heirs of Karunakara Panicker, though in S.A.No.75/94, Chandrika, the fifth respondent in S.A.No.40/94 is not a party.

2. S.A.No.40/94 arises out of the concurrent dismissal of O.S.No.265/87 filed by the appellant and S.A.No.75/94 arises out of the concurrent decree passed in O.S.No.424/87 against the appellants. Both O.S.Nos.265/87 and 424/87 were disposed of by a common judgment by the trial court and first appeals preferred from O.S.Nos.265/87 and 424/87 are respectively A.S.Nos.430/88 and 431/88 SA 40 & 75 of 1994 -2- and those were being disposed of by the first appellate court vide common judgment dated 12.02.1993.

3. O.S.No.265/87 is a suit instituted by the appellant in S.A.No.40/94 as the sole plaintiff who happens to be the first appellant in S.A.No.75/94 as well. That was a suit for eviction of the respondents from the building in the scheduled property inter alia on the following allegations:-

The scheduled building and twenty cents of property wherein the said building stands originally belonged to Rajasekharan; that he got title and possession over the said property as per assignment of mortgage vide Exhibit A1; that he rented out the building to Velayudha Panicker Karunakaran on 11.07.1972 under Exhibit A2 rental deed on a monthly rental of Rs.30/-; that the said Karunakaran is no more; that the first defendant is the wife of said Karunakaran and defendants 2 onwards are his children; that they are residing in SA 40 & 75 of 1994 -3- the scheduled building as tenants under Exhibit A2 rental deed executed by their predecessor in interest; that the said twenty cents and the scheduled building situated therein was assigned by Rajasekharan in his favour vide Exhibit A3 assignment deed dated 09.01.1987 and thus, he got title over the scheduled building and the property over which the said building is situated; that the defendants have paid rent only up to June, 1986 and they are in arrears from July, 1986 onwards; that at the time of execution of Exhibit A3 assignment deed, rent for six months was in arrears and he is authorised to realise the said arrears as well, as per Exhibit A3; that though on intimation given to the defendants regarding the assignment of title in his favour and they promised also to pay the rents, including the rents in arrears and future rent, to him, they have not cared to do so; that he bona fide requires the said building for his occupation; that he is also desirous of re-constructing the SA 40 & 75 of 1994 -4- said building; that he has issued Exhibit A9 notice terminating the tenancy with effect from 11.02.1987; that the defendants have issued Exhibit A8 reply denying the tenancy arrangement and that therefore, he prayed for a decree for recovery of arrears of rent authorised to be recovered under Exhibit A3 and also with future mesne profits at the rate of Rs.50/- per month and in the alternative for a decree for recovery of possession of the scheduled building on the strength of his title with mesne profits at the rate of Rs.50/- per month.

4. Only defendants 1 to 4, 6 and 7 resisted the suit filing a joint written statement. They contended, inter alia, that the suit is not maintainable; that the scheduled property and building never belonged to Rama Panicker Rajasekharan and he was not having title or possession over the same; that there was no rental arrangement between Karunakaran and Rajasekharan as SA 40 & 75 of 1994 -5- is attempted to be established by production of Exhibit A2; that twenty cents of scheduled property and building situated therein was outstanding on a mortgage from the Jenmi from 1085 M.E. onwards; that the mortgage in respect of the property devolved on Ayyi Bhavani; that she was a relative of Karunakara Panicker; that Ayyi Bhavani was residing in the building along with her brother Kunjunni; that later Kunjunni, who turned enimical towards Bhavani, shifted his residence and Bhavani also vacated the building and began to reside along with her daughter at Thiruvallam; that thus, the building and scheduled property was lying in an abandoned state; that Karunakara Panicker thereupon reduced the building in the property to his possession in the year 1967 and he began to reside in the building along with his wife and children who are the defendants and renovated the building using his own funds; that on death of Karunakara Panicker the defendants extended the building by SA 40 & 75 of 1994 -6- constructing three more rooms as addition to the old structure on 01.06.1977 and the defendants are in enjoyment of the entire twenty cents of scheduled property with the building situated therein from 1967 onwards uninterruptedly and were taking the income from the property and appropriating it for themselves; that possession of the defendants as owners of the property is known to all persons; that Exhibit A3 assignment deed executed by Rajasekharan in favour of the appellant/plaintiff is the result of collusion and it is a sham document; that Rajasekharan is none other than the brother-in-law of father of the plaintiff; that the plaintiff is only a student; that the predecessor-in-interest of the plaintiff was never in possession and enjoyment of the scheduled property and the building; that no rent was ever paid by Karunakara Panicker or by these defendants; that the plaintiff has no right to evict the defendants from the scheduled building SA 40 & 75 of 1994 -7- and twenty cents of property on which the scheduled building stands; that to Exhibit A9 notice issued by the plaintiff, these defendants have issued Exhibit A8 reply stating the true facts; that the plaintiff has no cause of action to file the suit and has no right to recover possession of the building with mesne profits as claimed; that these defendants have instituted O.S.No.424/87 for a permanent prohibitory injunction in respect of twenty cents of property and building situated therein and that the present suit is barred by adverse possession and limitation. On the above contentions, the defendants prayed for a dismissal of the suit with their costs.

5. O.S.No.424/87 was instituted by defendants 1 to 4, 6 and 7 in O.S.No.265/87 for a decree of permanent prohibitory injunction inter alia on the allegations that the first plaintiff is the widow of Karunakara Panicker and plaintiffs 2 to 6 are her children born to the said Karunakara Panicker;

SA 40 & 75 of 1994 -8- that the first defendant is the son of the second defendant; that the scheduled property was outstanding on mortgage from the Jenmi family from 1085 M.E. onwards; that the said mortgage right devolved on Ayyi Bhavani, who is a relative of Karunakara Panicker; that Ayyi Bhavani was residing with her brother Ayyappan Kunjunni in the building in the scheduled property and while so, Kunjunni, who turned enimical towards Bhavani, shifted his residence from the scheduled building and thereafter, Bhavani also left the scheduled building and started residing with her daughter at Thiruvallam and the scheduled property and building were lying in an abandoned state thereafter; that Karunakara Panicker and the plaintiffs took possession of the scheduled property and building in the year 1967; renovated the building using their own funds and started residence in the building; that Karunakara Panicker and the plaintiffs were cultivating the scheduled property SA 40 & 75 of 1994 -9- and was in enjoyment thereof exclusively; that while so, after the death of Karunakara Panicker, the plaintiffs extended the scheduled building by constructing two more rooms in addition to the old structure on 01.06.1977 and they are in possession of the scheduled property and building to the exclusion of all others without any interruption from 1967 onwards and thus, they have acquired title over the scheduled property and building by adverse possession; that the first defendant was a student and he claims title to the scheduled property as per Exhibit A3 assignment deed dated . 09.01.1987 allegedly executed by his brother-in- law; that O.S.No.265/87 is filed by the first defendant for recovery of possession of the scheduled building from the plaintiffs on the basis of an alleged rental arrangement between Rajasekharan and Karunakara Panicker and that he has alternatively prayed for recovery of possession of the scheduled building on the strength of his SA 40 & 75 of 1994 -10- title; that Exhibit A3 assignment deed is invalid and is not binding on the plaintiff and it is tainted by collusion and is also a sham document; that the first defendant, with the help of his father, the second defendant, is attempting to take forcible possession of the scheduled property and building and that they have to be prevented from such highhanded action. On the above allegations plaintiffs prayed for a decree of permanent prohibitory injunction restraining the defendants from trespassing into the scheduled property and the building therein or taking income therefrom or causing any obstruction to the plaintiffs' peaceful enjoyment thereof.

6. Defendants 1 and 2 filed joint written statement resisting the suit contending, inter alia, that the scheduled property was in the possession of Ayyi Bhavani; that she was not a relative of Karunakara Panicker; that Ayyappan Kunjunni and Ayyi Bhavani never resided together;

SA 40 & 75 of 1994 -11- that Ayyi Bhavani never abandoned the building and the property; that it is false to say that Karunakara Panicker and plaintiffs took possession of the property in the year 1967 and they renovated the building using their own funds; that neither the plaintiffs nor Karunakara Panicker did have any title or possession over the scheduled property; that Ayyi Bhavani executed an assignment deed in favour of Rajasekharan vide Exhibit A1 dated 25.10.1969 and the scheduled building and the property were in possession and enjoyment of Rajasekharan; that while so, Karunakara Panicker took the building on rent from Rajasekharan on 11.07.1972 under Exhibit A2 on a monthly rental of Rs.30/- and Karunakaran and members of his family began to reside in the said building; that later, on the death of Karunakaran, the first defendant, who is his wife, continued residence along with her children as legal heirs of Karunakaran and plaintiffs have no right or possession over the SA 40 & 75 of 1994 -12- property; that the said Rajasekharan has transferred his right over the scheduled property to the first defendant as per Exhibit A3 assignment deed dated 09.01.1987; that the first defendant is in possession and enjoyment of the scheduled property and for evicting the plaintiffs from the scheduled building the first defendant has instituted O.S.No.265/87 and the present suit is filed as a counter blast to the said suit; that plaintiffs are residing in the building as legal heirs of Karunakaran and they have no title or possession over the scheduled property and the building situated therein and have not extended the said building by constructing additional rooms as alleged; that the documents relied on by the first defendant are not sham documents; that the claim of the plaintiffs is barred by estoppal; that the scheduled property is in possession of the first defendant; that the plaintiffs committed theft from the scheduled property and in connection therewith SA 40 & 75 of 1994 -13- a case was also registered against the plaintiffs; that the plaintiffs are not entitled to decree of prohibitory injunction as prayed for and that the suit itself is not maintainable and has to be dismissed with costs.

7. The trial court raised necessary issues for trial in both the suits, which are extracted below for easy reference:-

"O.S.265/87

1. Whether the description of plaint schedule property is correct ?

2. Whether Velayudha Panicker Karunakaran has taken the plaint schedule building on a monthly rent of Rs.30/- from Rama Panicker Rajasekharan on 11th July, 1972?

3. Whether there is any privity of contract between the plaintiff and the defendants ?

4. Whether the plaintiff is entitled to recover the possession of plaint schedule building from the defendants ?

5. Is the suit barred by adverse possession and limitation ?

6. Whether the plaintiff is entitled to realise any amount as arrears of rent. If so what is the amount ?

7. Whether the plaintiff is entitled to recover the building with mesne profits as prayed for ? If so what is the mesne profit awardable ?

8. Reliefs and costs ?

SA 40 & 75 of 1994 -14- O.S.424/87

1. Whether the plaintiffs are in possession of plaint schedule properties by adverse possession and limitation ?

2. Whether plaintiffs have prescribed title over plaint schedule properties by adverse possession and limitation ?

3. Whether plaintiffs are entitled to the injunction prayed for ?

4. Reliefs and costs ?"

8. A joint trial of both the suits was being had treating O.S.No.265/87 as the main case. Considering the evidence adduced at trial, which consisted of oral evidence of PWs1 and 2 and DWs1 to 7 and documentary evidence Exthibits A1 to A10, B1 to B4 and Exhibit X1, the trial court dismissed O.S.No.265/87 and decreed O.S.No.424/87 granting the plaintiffs therein a decree of permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and the building situated therein and from taking the yield from the said property or causing any obstruction to the peaceful enjoyment of the said SA 40 & 75 of 1994 -15- property and building by the plaintiffs. The plaintiff in O.S.No.265/87 assailed the decree dismissing the said suit filing A.S.No.430/88 and the defendants in O.S.No.424/87, namely the plaintiff in O.S.No.265/87 and his father, filed A.S.No.431/1988 before the District Court, Thiruvananthapuram assailing the decree of permanent prohibitory injunction granted in favour of the respondents, who were the plaintiffs in the said suit. Both the appeals were considered and disposed of by a common judgment dated 12.02.1993 by the II Additional District Judge, Thiruvananthapuram whereby both the appeals were dismissed with costs. Hence, these Second Appeals by the aggrieved appellants in A.S.Nos.430/88 and 431/88.

9. S.A.No.40/94 filed against the dismissal of O.S.No.265/87 and A.S.No.430/88 was admitted on the substantial questions of law formulated in the memorandum of Second Appeal. The questions of law formulated in the memorandum of Second Appeal as SA 40 & 75 of 1994 -16- substantial questions of law are the following:-

"A. When the defendants and their predecessor occupy a building belonging to a close relative, because it lies vacant and without setting up a hostile title or a denial of the owners title, will this fact constitute adverse possession against the true owner?

B. Will mere possession, however long, constitute adverse possession sufficient to prescribe a title thereby if there is no plea or evidence of holding the property hostilely and in denial of the true owner's title ?

C. In the absence of credible evidence of adverse possession for the entire statutory period required, can the defendants prescribe title by limitation ?

D. When the very documents produced by the defendants Exts.B1 and B2 show their occupation at the same time showing the assessee owner as Rajasekharan, does it not constitute an admission of his title especially when the first defendant's claim that she complained against the entry to the Panchayath but failed to produce any such records ?

E. Were the courts below justified in relying on Ext.X1 voter's list without identification of the relevant entries when the house number, house name and the ages of the persons do not tally?

F. When the execution of Ext.A2 by Karunakaran has been proved by the positive SA 40 & 75 of 1994 -17- evidence of PWs.1 and 2, the executee and the attestor and highly probabilised by the surrounding circumstances were the courts below justified in finding against its genuineness merely on the say- so of the first defendant and a few discrepancies in A2, which latter really guarantees its genuineness?

G. Were the courts below justified in failing to draw an inference adverse to the defendants denial of Ext.A2 by reason of the non-production by the defendants of any document containing Karunakaran's admitted signature?"

10. S.A.No.75/94 filed assailing the decree passed in O.S.No.424/87 on the file of the Munsiff's Court, Neyyattinkara, which was confirmed in A.S.No.431/1988, was also admitted on the substantial questions of law formulated in the memorandum of Second Appeal, which are as follows:-

SA 40 & 75 of 1994 -18- C. In the absence of credible evidence of adverse possession for the entire statutory period required, can the respondents prescribe title by limitation ?

D. When the very documents produced by the respondents Exts.B1 and B2 show their occupation at the same time showing the assessee owner as Rajasekharan, does it not constitute an admission of his title especially when the first defendant's claim that she complained against the entry to the Panchayath but failed to produce any such records ?

E. Were the courts below justified in relying on Ext.X1 voter's list without identification of the relevant entries when the house number, house name and the ages of the persons do not tally?

F. When the execution of Ext.A2 by Karunakaran has been proved by the positive evidence of PWs.1 and 2, the executee and the attestor and highly probabilised by the surrounding circumstances were the courts below justified in finding against its genuineness merely on the say- so of the first respondent and a few discrepancies in A2, which latter really guarantees its genuineness?

G. Were the courts below justified in failing to draw an inference adverse to the respondents denial of Ext.A2 by reason of the non-production by the respondents of any document containing Karunakaran's admitted signature?

H. Were the courts below justified in granting injunction to the respondents in the facts SA 40 & 75 of 1994 -19- and circumstances of the case ?"

11. The questions of law, on which notice was ordered and extracted above, though were formulated in the appeal memorandum, are admitted by counsel on both sides are not precise substantial questions of law and that substantial questions of law deserve to be recast. On hearing submissions of both sides, I formulate the following as common substantial questions of law in these appeals:-

1. Does not Ext.A2 stand proved under Section 67 of the Evidence Act by the evidence of PW2 and of PW1 and however, even in the event of lack of proof in relation to the rental arrangement pleaded by the appellant, inasmuch as alternate relief of recovery of possession of the scheduled building on the strength of title had also been prayed for in O.S.No.265/87, are the courts below justified in not considering tenability of the said alternate claim as well ?

2. Whether the framing of and entering findings SA 40 & 75 of 1994 -20-

on Issue Nos.1 and 2 by the trial court in O.S.No. 424/1987, a suit wherein the prayer was only for a decree of permanent prohibitory injunction and no court fee had been paid also on the issues so framed, is justified in law and whether the decree passed in favour of respondents for reason of findings rendered on those two issues in their favour is sustainable without a prayer for declaration of perfection of title over the scheduled property and building by the respondents by adverse possession and limitation ?

3. Whether occupation by the respondents of the scheduled building, which is admitted also by the appellants, is sufficient for a finding being rendered that the respondents have perfected title over the scheduled property and building by adverse possession and limitation in the absence of sufficient pleadings from the side of the respondents in that behalf and without proof of necessary animus in holding the property adversely SA 40 & 75 of 1994 -21- to the interest of the real owners ?

4. Is not the concurrent findings of the courts below regarding perfection of title by adverse possession and limitation by the respondents over the scheduled property and building unsustainable for reason of wrong application of the law on the subject on the available pleadings and materials furnished in evidence ?

12. Counsel for the respondents raised a preliminary objection regarding the maintainability of these second appeals citing various authorities and contending that there is no substantial question of law involved in these second appeals for decision by this Court and that therefore, these second appeals are only to be dismissed without entering into the questions of law either framed in the memorandum of appeals or as recast by this Court in the course of arguments of these second appeals. According to the learned counsel, the suits having been decided in favour of the SA 40 & 75 of 1994 -22- respondents concurrently by the two courts below, it is not open for this Court to go into the merits of the case to any extent whatsoever.

13. Counsel for the respondents relied on the decisions of the Apex Court in State of Kerala v. Mohd. Kunhi ((2005) 10 SCC 139), Navaneethammal v. Arjuna Chetty ((1996) 6 SCC 166), Sayamma v. Basamma ((2000) 8 SCC 567) Basappa v. Puttappa ((2000) 8 SCC 565), Hero Vinoth v. Seshammal ((2006) 5 SCC 545), Govindaraju v. Mariamman ((2005) 2 SCC 500), Kondiba Dagadu Kadam v. Savitribai Sopan Gujar ((1999) 3 SCC 722) and M.Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar ((2000) 10 SCC 244) to contend that concurrent decrees of the courts below, however wrong it be, cannot be considered over again by the High Court in second appeals entering into the merits of the case.

14. The learned counsel forgets the fact that even when findings are concurrently entered into by SA 40 & 75 of 1994 -23- the courts below, it does not preclude the High Court from interfering with the said concurrent judgments when the judgments so entered into were not based on any evidence and were perverse and the conclusions arrived at by the courts below were erroneous being contrary to the mandatory provisions of law applicable to the facts of the case or contrary to law as pronounced by the Apex Court or was erroneous being based upon inadmissible evidence or on no evidence. It is enough that to be a substantial question of law, it must be debatable, not previously settled by the law of land or a binding precedent and should be such that answer to it would have a material bearing as to the rights of the parties before court. Similarly, a substantial question of law would arise where the legal position is clear, but, the courts below have decided the matter ignoring or acting contrary to such principle and has arrived at findings on wrong application or on a SA 40 & 75 of 1994 -24- misunderstanding of the position of law, as could be understood from the decisions of the Apex Court cited by the learned counsel himself, viz., the decisions reported in M.Nadar Kesavan Nadar v. Narayanan Nadar Kunjan Nadar ((2000) 10 SCC 244), Hero Vinoth v. Seshammal ((2006) 5 SCC 545), Govindaraju v. Mariamman ((2005) 2 SCC 500) and Kondiba Dagadu Kadam v. Savitribai Sopan Gujar ((1999) 3 SCC 722). It is only an interference by the High Court in the concurrent findings of the courts below re-appreciating the entire evidence on record and reversing the concurrent findings that is not permissible under Section 100 of the Civil Procedure Code as has been held by the Apex Court in State of Kerala v. Mohd. Kunhi ((2005) 10 SCC

139) and Navaneethammal v. Arjuna Chetty ((1996) 6 SCC 166). The decision of the Apex Court in Sayamma v. Basamma ((2000) 8 SCC 567) was a case where the second appeal filed was allowed by the High Court on re-appreciation of the evidence SA 40 & 75 of 1994 -25- without framing any substantial question of law. Basappa v. Puttappa ((2000) 8 SCC 565) was a case where a learned single Judge of the Karnataka High Court did not frame any question of law and much less any substantial question of law, but reversed the decision of the first appellate court and pointing out the error committed by the High Court, the Apex Court restored the decision of the first appellate court. In the decision in Navaneethammal v. Arjuna Chetty ((1996) 6 SCC 166) the Apex Court has held only that the High Court should not interfere with the concurrent findings of the courts below by re-appreciating the evidence and arriving at another possible view; that by virtue of Section 100 of the Code of Civil Procedure interference with the concurrent findings of the courts below must be avoided unless warranted by compelling reasons; that the High Court is not expected to re-appreciate the evidence just to replace the findings of the lower courts and that SA 40 & 75 of 1994 -26- even assuming another view is possible on a re- appreciation of the same evidence, the High Court cannot replace its own findings in the place of the concurrent findings of the courts below when it cannot be said that the view taken by the courts below was based on no material.

14. The Apex Court in Deva v. Sajjan Kumar ((2003) 7 SCC 481) has held, considering Section 100 of the Code of Civil Procedure, that concurrent findings of fact is liable to be interfered with in Second Appeal when a very important piece of evidence in the nature of an admission by the defendant has been over looked by the courts below. In the instant case, the courts below have upheld the case of adverse possession set up by the respondents/Defendants overlooking the admission of the first respondent/first defendant as DW1 in cross examination that there is no Jenmi for the scheduled property in their occupation; that she is not aware of what right Ayyi Bhavani had over the SA 40 & 75 of 1994 -27- scheduled property and building except that Ayyi Bhavani was in residential occupation and when she vacated, they occupied the building and that she is not aware as to whom the scheduled property and building belonged at the time of their occupation.

15. The decisions cited by the learned counsel for the respondents do not support his contentions that no substantial question of law arises for consideration by this Court in these second appeals even as recast by this Court and as it stood originally, as formulated in the memorandum of appeals, for the reason that the courts below concurrently passed decree in favour of the respondents in view of its findings on Issue Nos.1 and 2 in O.S.No.424/87, upholding the case of adverse possession and limitation set up by the respondents in that suit, which was instituted as one for a decree of permanent prohibitory injunction only and despite raising Issue Nos.1 and 2 as regards perfection of title by the respondents SA 40 & 75 of 1994 -28- by adverse possession and limitation, no court fee was also paid by the respondents on the issues so raised vide Section 27(a)(ii) of the Kerala Court Fees and Suits Valuation Act, 1959. Further, O.S. No.265/87 is filed by the appellants as plaintiffs for recovery possession of the scheduled building (excluding the premises wherein the scheduled building is situated) with arrears of rent. The relief so prayed for as also the alternate relief of recovery of possession based on title was repelled and the suit was dismissed concurrently by the courts below in view of the uncalled for findings entered into in the injunction suit O.S. No.424/87 on Issue Nos.1 and 2, wherein, the entire property of twenty cents was also scheduled and not the building only that was scheduled in O.S.No. 265/87, to the effect that the respondents have perfected title thereto by adverse possession. Thus, by wrong appreciation of the provisions of law and entering into uncalled for findings, the SA 40 & 75 of 1994 -29- courts below have concurrently worked out injustice against the present appellants, who have got title over the scheduled property and the building favouring one, who has no title, perversely entering finding that they have perfected title by adverse possession and limitation. The preliminary objection raised by the counsel for the respondents, in the circumstances, is repelled.

16. On substantial question No.2 formulated by this Court in the course of arguments in the appeal recasting the question of law formulated in the memorandum of appeal, it is contended before me by the learned counsel for the appellants that it is pursuant to entering into findings on Issue Nos.1 and 2 by the trial court in O.S.No.424/87, a suit wherein the prayer was only for a decree of permanent prohibitory injunction and with no court fee also paid on the issues so framed that the courts below upheld the case of the respondents that they have perfected title over the scheduled SA 40 & 75 of 1994 -30- property and building by adverse possession and limitation and that declaration of perfection of title over the scheduled property in O.S.No.424/87 consequent on such findings in an injunction suit is unwarranted and perverse and deserves to be set aside.

17. Counsel for the respondents submits that the lower court was entering into findings on Issue Nos.5 and 7 in O.S.No.265/87 and Issue Nos.1 and 2 in O.S.No.424/87 together; that Issue No.5 in O.S. No.265/87 is as to whether the suit is barred by adverse possession and limitation and that therefore, the finding as regards perfection of title by adverse possession over the scheduled property and building in O.S.No.424/87 cannot be found fault with.

18. The relief prayed for in O.S.No.424/87 is one for a decree of permanent prohibitory injunction in relation to the scheduled property therein which takes in 20 cents of land with all SA 40 & 75 of 1994 -31- improvements therein and building bearing Door No.VP-6/52. But, in O.S.No.265/87, the relief prayed for is only in relation to the building bearing Door No.VP-6/52 and no relief is prayed for in relation to the property of twenty cents wherein the said building stands. When recovery of possession of the building is prayed for in O.S. No.265/87 on the basis of a rental arrangement alleged, with no relief in relation to twenty cents wherein the building also stands, the relief granted in an injunction suit in favour of the plaintiffs therein declaring that they have perfected title over the scheduled property of twenty cents and building therein was beyond the scope of the suit and such declaration of perfection of title by adverse possession should not have been granted by the courts below.

19. On substantial questions of law 3 and 4 formulated by this Court in the course of arguments in the appeal recasting the questions of law SA 40 & 75 of 1994 -32- formulated in the memorandum of appeal it is submitted by the learned counsel for the appellants that it is common case that the scheduled property of twenty cents in O.S.No.424/87 belonged to Ayyi Bhavani, she having obtained it under a will executed by her mother Chinna Ayyi in 1120 M.E. Ayyi Bhavani assigned her rights over the said property under Exhibit A1 assignment in favour of PW1 Rajesekharan and he in turn assigned it under Exhibit A3 dated 09.01.1987 in favour of the appellant. Though the respondents disputed the title of the appellant and his vendor, the rights of the appellant stand established by Exhibits A1 and A3 as also by Exhibits B1 and B2 produced by the respondents. Exhibit B2 is the extract of the Building Tax Assessment Register for the years 1978-83 as also for the period from 1983 to 1988 of Vizhinjam Panchayat in relation to Ward No.VI and it shows that the owner of the scheduled building is PW1 Rajasekharan and he himself was the occupant SA 40 & 75 of 1994 -33- during 1978-83 and for the period from 1983 to 1988 PW1 is the owner, but the occupant is the first respondent Savithri. Exhibit B1 is the copy of Building Tax Assessment Register for the years 1973-1978 only and that also shows that PW1 is the owner and the occupant. In the light of Exhibits B1 and B2 produced by the respondents themselves, they cannot be heard to contend that the appellant is not the landlords, they having got assignment of rights of PW1 under Exhibit A3 sale deed.

20. It is worthy to note that in the plaint in both the suits, the description of the scheduled property is the verbatim re-production of the description in Exhibit A3 title deed of the appellant. Title has, however, been found concurrently by the courts below in favour of the appellant and that finding does not deserve to be interfered with. The contention of the respondents, inter alia, in both the suits, admitting the title of Ayyi Bhavani over the scheduled property and SA 40 & 75 of 1994 -34- building, is that Ayyi Bhavani was residing in the building in the said property along with her brother Kunjunni; that later Kunjunni became enimical towards Ayyi Bhavani and shifted his residence from the said house and thereafter Ayyi Bhavani also left the building and began to reside with her daughter at Thiruvallam; that the scheduled property and building were lying in an abandoned state; that thereupon, Karunakara Panicker, who is the predecessor of the respondents, entered into possession of the building and the property of twenty cents along with the respondents in 1967, renovated the building and began to reside therein; that after the death of their predecessor Karunakara Panicker on 01.06.1977, the respondents have extended the building adding three more rooms with the old structure and are continuing in possession and enjoyment of the said property of twenty cents with the building therein, as their own uninterruptedly SA 40 & 75 of 1994 -35- from 1967 onwards and are in enjoyment of the same to the exclusion of all others in derogation of the rights of anybody else and as absolute owners and hence they have perfected title over the scheduled property and building by adverse possession and limitation.

21. It is on the above pleadings that the courts below have concurrently entered into findings to the effect that the respondents have perfected title over the scheduled property and building by adverse possession and limitation. The findings so entered into by the courts below, though concurrently, is against the settled principles of law on the subject of adverse possession and hence, deserve to be interfered with by this Court in these second appeals.

22. The respondents have no case that they, along with their predecessor, took possession of the scheduled property forcibly and began occupation of the building therein ousting Ayyi SA 40 & 75 of 1994 -36- Bhavani from possession thereof or that they entered into occupation of the building in the scheduled property to the knowledge of Ayyi Bhavani, who was the owner of the scheduled property till Exhibit A1 was executed in favour of PW1 on 25.10.1969. They have also no case that they held possession of the scheduled property and continued in occupation of the building to the knowledge of PW1 after Exhibit A1 was executed. The pleadings advanced by the respondents in the written statement in O.S.No.265/87 as also in the plaint in O.S.No.424/87 evidence a case of the respondents and their predecessor occupying the scheduled building stealthily with no intention of holding the property and building adversely to the real owners. In T.Anjanappa v. Somalingappa ((2006) 7 SCC 570) the Apex Court had occasion to consider a somewhat similar case, wherein, the contention raised by the defendants to resist eviction was that the property belonged to the Government and SA 40 & 75 of 1994 -37- they were in adverse possession thereof. The High Court upheld the plea of adverse possession advanced by the defendants therein in the view that though the defendants were in possession under the mistaken assumption of title with themselves or with the Government, same cannot be a ground to hold that possession is not a hostile possession from the standpoint of the real owner and that the suit for possession not having been filed within 12 years of dispossession, the defendants have perfected title thereto by adverse possession. The Apex Court, allowing the appeal filed by the plaintiffs therein, has held that in order to constitute perfected title by adverse possession, possession must be hostile in denial of title of the real owner either expressly or impliedly; that in order to have possession with such animus, it is essential that the possessor must clearly know the actual owner of the property and until then, there cannot be a situation of his being in hostile SA 40 & 75 of 1994 -38- possession and the question of denying title of true owner would not arise. It was also held that such possession must be peaceful, continuous and 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 possessor actually informing the real owner of the former's hostile action. The Apex Court also observed that it is the basic principle of law of adverse possession that it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner and it is possession inconsistent with the title of the true owner. It was also held that a person, who bases his title of 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; that to decide SA 40 & 75 of 1994 -39- whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor and that adverse possession is commenced in wrong and is aimed against right.

23. The pleadings advanced by the respondents in the instant case show that their case is that on Ayyi Bhavani vacating the building in the scheduled property, they, along with their predecessor, entered into the building and occupied it stealthily and that there was no animus to hold the property wrongfully aimed against the rights of the real owner. In fact, they even do not say as to against whom were they holding the property adversely, though, even the documents produced by them as Exhibits B1 and B2 show that PW1 has become the owner of the building in their occupation. They have no case that they asserted the rights in derogation of the rights of PW1 or thereafter against the plaintiff, who is the transferee of the SA 40 & 75 of 1994 -40- property from PW1. A person is said to hold property adversely to the real owner when that person, in denial of the owner's right, excluded him from enjoyment of his property. The respondents did not have any such case in their pleadings. On the other hand, the first respondent/first defendant, as DW1, has admitted, in cross examination, that there is no Jenmi for the scheduled property in their occupation; that she is not aware as to what right Ayyi Bhavani had over the scheduled property and building except that Ayyi Bhavani was in residential occupation and when she vacated they occupied the building and that she is not aware as to whom the scheduled property and building belonged at the time of their occupation. She admitted even in her chief examination that she is not aware of Exhibit A1 in favour of PW1 and Exhibit A3 assignment in favour of the plaintiff. Hence, the very foundation of the case of adverse possession set up by the respondents/defendants SA 40 & 75 of 1994 -41- stands shattered.

24. In a later decision in P.T.Munichikkanna Reddy v. Revamma (JT 2007 (6) SC 86 = (2007) 6 SCC

59), the Apex Court has held that in order to successfully set up a claim by adverse possession, one should establish the wilful neglect element on the part of the owner and establish his specific positive intention to dispossess the real owner; that unusually, long undisturbed possession does not go on to prove the intention of the adverse possessor; that possession of the adverse possessor ought to be hostile and not peaceful; that it is the right, which comes into play not just because someone loses his right to re-claim the property out of continuous and wilfull neglect but also on account of possessors' positive intent to dispossess and that the courts do take an unkind view towards statutes of limitation overriding the property rights. In the decision relied on in the above decision, viz., the decision in Karnataka SA 40 & 75 of 1994 -42- Board of Wakf v. Government India ((2004) 10 SCC

779), the Apex Court has observed in paragraph 11, at page 785, as follows:-

"In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non- use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (see S.M.Karim v. Bibi Sakina, Parsinni v. Sukhi and D.N. Venkatarayappa v. State of Karnataka). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."

SA 40 & 75 of 1994 -43-

25. Considering the case set up by the respondents in the light of the tests laid down by the Apex Court, the instant case is not one which enables adverse possession claimed by the respondents being upheld and for that reason, the concurrent findings of the courts below regarding perfection of title by adverse possession and limitation by the respondents over the scheduled property and building entered into for reason of wrong application of the law on the subject and with insufficient pleadings and fatal admissions against the claim on the part of the respondents deserve to be set aside. Substantial questions of law 3 and 4 are, thus, answered.

26. On substantial question of law No.1, it is contended by learned counsel for the appellants that Exhibit A2 counter vadaka chit executed by Velayudha Panicker Karunakaran, the predecessor in interest of the respondents, on 11.07.1972 was produced and it stands properly proved by the SA 40 & 75 of 1994 -44- testimony of PW2 and that therefore, the suit for recovery of the building with arrears of rent as claimed should have been decreed. According to Sri.M.R.Anandakuttan, learned counsel for the appellants, under Section 67 of the Indian Evidence Act, the document Exhibit A2, written in the handwriting of PW2 and signed by him as attestor, stands proved by his testimony as the handwriting in Exhibit A2 is not successfully assailed as not being that of PW2 and further that Exhibit A2 is not a document which is required by law to be attested and that therefore, non-examination of the attestor to Exhibit A2 is not detrimental to its acceptance as properly proved especially in the circumstances of the evidence available in the case. He further contends that denial of execution by Karunakaran of Exhibit A2 by the respondents, who are his legal heirs, who did not claim to have acquaintance with his signature, despite the admission made by DW1 that Karunakaran signs in SA 40 & 75 of 1994 -45- English, the denial is of no weight and is of no serious consequence at all, as the respondents have not been able to produce an iota of evidence to show that they were in occupation of the building in the scheduled property at any point of time prior to 11.07.1972, the date on which Exhibit A2 was executed and has not produced any record evidencing any admitted genuine signature.

27. Though, in the written statement, the contention of the defendants is that consequent on Ayyi Bhavani vacating the scheduled building and abandoning the property, they, along with Karunakaran, their predecessor in interest, began occupation of the scheduled building in 1967 and they were in occupation from 1967 onwards, she gives a very clear date in her testimony as regards the date of occupation as 25.05.1967, whereas, the date of Exhibit A2 is 11.07.1972. The date of death of Karunakaran, the alleged executant, is 01.06.1977. It is seen from the vendor's SA 40 & 75 of 1994 -46- endorsement on the reverse of the stamp papers used for writing Exhibit A2 that the stamp papers, which are two in number, bears consecutive numbers as 1130 and 1131 and as having been purchased in the name of the executant Karunakaran on 11.07.1972. The Treasury seal in the first page of the stamp paper shows that the stamp paper is one issued from the Treasury in July 1972. These aspects suggest that Exhibit A2 dated 11.07.1972 was written on the stamp papers purchased by executant Karunakaran on 11.07.1972 and that prima facie, there is no reason to think that Exhibit A2 is brought into existence fraudulently as contended by the defendants. Nothing has been brought out in cross-examination of PW2, which would enable his testimony being discarded or disbelieved. It is true that PW1 deposed that the scribe is Babu. PW1 was being examined when Exhibit A2 was already before court. Nothing was asked to PW1 in cross-examination that Exhibit A2 is seen written by the scribe SA 40 & 75 of 1994 -47- Santhakumaran, who is examined as PW2. PW2 was also not asked in cross-examination assailing his testimony that the handwriting in Exhibit A2 is his handwriting or that he is not Babu and that he will not be known as Babu. It is only when in re- examination he was asked by the plaintiffs' Lawyer as to whether he is having an alias name as Babu that a further cross was conducted asking him as to whether it is not correct to say that he has no alias name as Babu. Exhibit A2 provides for the rents at the monthly rate of Rs.30/- being paid and receipts being obtained, but, obviously, such receipts will only be with the tenant and not with the landlord.

28. When the contention of the respondents/ defendants is that they are in occupation of the scheduled building from 1967 onwards, it cannot be contended for a moment that they are not having any record at all to show their occupation of the scheduled building at any point of time between the SA 40 & 75 of 1994 -48- alleged date of their occupation, namely,

25.05.1967 and the date of Exhibit A2, namely, 11.07.1972. Even Exhibits B1 and B2 produced by the respondents/defendants show that Rajasekharan, the executant of Exhibit A3, is the owner of the scheduled building. Exhibit B1 is the assessment extract for the period 1973-78 and therein, the scheduled building is shown as in possession and occupation of the owner himself. In Exhibit B2 assessment extract, which is for the periods 1978- 83 and 1983-88, shows that during the assessment years 1978-83, the owner Rajasekharan himself was having possession and occupation of the scheduled building. The first defendant is shown as occupant only during the period 1983-88. The only record on the basis of which the learned counsel for the respondents attempted to establish possession of the respondents/defendants prior to 11.07.1972 is Exhibit X1 voters' list caused to be produced and proved through DW5, the Record Keeper of the Taluk SA 40 & 75 of 1994 -49- Office, Neyyattinkara. He has given evidence that Sl.Nos.528 and 529, at Page 9 of the said voters' list, are Karunakara Panicker, S/o Velayudha Panicker and Savithri, W/o Karunakara Panicker. In cross-examination, he has stated that he has no responsibility in the preparation of Exhibit X1 and that he is not aware as to whether any correction has, subsequently, been effected in Exhibit X1.

29. It is vehemently contended by counsel for the respondents that Charuvila Puthen Veedu is the scheduled building as seen from the address of the respondents and that in the voters' list also the said address is seen. In Exhibit X1, the address of Sl.No.522 is Charuvila Thekkaruku Puthen Veedu; that the address of voters under Sl.Nos.523 to 529 and 532 is shown as Charuvila Veedu; that the address of Sl.Nos.530 and 531 is Charuvila Kadayara Veedu; that the address of Sl.Nos.535 to 539 is Charuvila Mele Puthen Veedu; that the address of Sl.Nos.540 and 541 is Charuvila Thekkaraku Veedu;

SA 40 & 75 of 1994 -50- that the address of Sl.Nos.542 and 543 is Charuvila Mekkaruku Veedu and that Charuvila Puthen Veedu, which is shown as the address of the respondents/ defendants is not there in the voters' list. In any event, it is common knowledge that the voters' lists are corrected and revised on applications made by persons claiming that their names have been omitted from the list and after verification, their names also will be included in the voters' list. It is not known as to whether Exhibit X1 voters' list prepared in 1970 showing the completed age of the voters as on 01.10.1970 was ever used for conduct of election prior to 11.07.1972, the date of Exhibit A2 rental deed. It could very well be that after Karunakara Panicker occupied the scheduled building executing Exhibit A2 rental deed on 11.07.1972 application was made for inclusion of their names in the voters' list prior to the election, which election was conducted to the Legislative Assembly using Exhibit X1 voters' list.

SA 40 & 75 of 1994 -51- In such an event, the entries in Exhibit X1 voters' list cannot be given undue evidenciary value, though it may be conclusive for the purpose of a voter exercising his right of franchise.

30. It is worthy to note that in Exhibit A3 executed by PW1 in favour of the plaintiff, the plaintiff is authorised also to recover the rents, which are in arrears, namely, the rents from July 1986 for a period of six months up to the date of Exhibit A3, which is prior to the institution of the suit for eviction. Thus, it can be seen that there is absolutely no evidence of the respondents/ defendants and their predecessor Karunakara Panicker having occupied the scheduled building prior to Exhibit A2 rental deed and the denial of execution by Karunakara Panicker of Exhibit A2 by his legal representatives, who were not aware at all of Exhibit A2, cannot be given undue weight. PW1 has given evidence that at the time of his effecting purchase of the scheduled building and SA 40 & 75 of 1994 -52- property, wherein it stands, under Exhibit A1 assignment deed from Ayyi Bhavani, the scheduled building was remaining locked up and that after the purchase he also locked up the building and that it is only later that it was rented out to Karunakara Panicker under Exhibit A2. There is no valid challenge also to the effect that the signature in Exhibit A2 is not that of the executant Karunakara Panicker in cross-examination of both PWs 1 and 2 and the respondents have not even produced any document bearing the specimen signature of late Karunakara Panicker so as to enable comparison of the signatures being made. It is too much for the courts to hold against the genuineness of the rental deed when the tenant passes away and his legal heirs deny execution of the rental deed for the sake of denial only, in the absence of even an iota of evidence to the effect that they were in occupation of the scheduled building at any point of time before the date of the said rental deed.

SA 40 & 75 of 1994 -53- It is also worthy to note that it is execution of Exhibit A2 that is disputed and not that it is vitiated by material alteration and hence several of the questions put to PWs 1 and 2 in cross- examination did not carry any significance at all. The fourth plaintiff, when examined as DW7, was asked as to who is paying the tax in relation to the scheduled property and building. He has answered that PW1 is said to have paid the tax. He has also deposed that he is not aware as to in which all documents his father has signed. It is also worthy to note that though the respondents alleged that Ayyi Bhavani is a relative of Karunakara Panicker, they did not cite her as a witness, though, according to DW1, Ayyi Bhavani is alive. The circumstances and the evidence, as discussed aforesaid, show that denial of execution of Exhibit A2 rental deed by the respondents, who are the heirs of deceased Karunakara Panicker, the executant of Exhibit A2, setting up a case of their SA 40 & 75 of 1994 -54- being in possession of the scheduled building from 1967 onwards, is false. However, when they are found to be not in occupation of the scheduled building prior to the date of Exhibit A2, they have no case as to how they came into occupation otherwise than under Exhibit A2 rental deed. In the circumstances, the evidence furnished by the plaintiffs do establish the genuineness of Exhibit A2 rental deed and that the respondents/defendants are the tenants of the scheduled building presently under the plaintiff in O.S.No.265/87, who got assignment of the rights of Rajasekharan under Exhibit A3 assignment deed of the rights he obtained under Exhibit A1 from Ayyi Bhavani. Consequently, therefore, it has to be held that he is entitled to a decree for recovery of possession of the scheduled building from the respondents/ defendants with arrears of rent of Rs.240/- till date of suit and thereafter at the rate of Rs.30/-


per     month       till  recovery  of   possession of   the

SA 40 & 75 of 1994           -55-

scheduled building is had or till three years from this date, whichever event happens earlier.

31. In view of the findings against the respondents and in favour of the appellants on substantial questions of law 1 to 4 and in view of the finding that the respondents and their predecessor came into occupation of the scheduled building by virtue of Exhibit A2 rental deed only in the year 1972, repelling their case that they came into occupation and possession of the house as also the entire property wherein the house is situated in 1967 on Ayyi Bhavani vacating the building abandoning the building and property, the respondents are only the occupants of the building in the scheduled property in O.S.No.424/87, from which they are allowed to be evicted allowing S.A. No.40/94; that they have no possession of the property wherein the building is situated and that they are not entitled to a decree of permanent prohibitory injunction as allowed by the courts SA 40 & 75 of 1994 -56- below by the decrees impugned in S.A.No.75/94.

In the result, allowing both these appeals, O.S.No.265/87 stands decreed allowing the appellant to recover possession of the scheduled building in O.S.No.265/87 from the respondents with arrears of rent of Rs.240/- till date of suit and thereafter at the rate of Rs.30/- per month till recovery of possession of the scheduled building is had or till three years from this date, whichever event happens earlier and O.S.No.424/87 stands dismissed in reversal of the concurrent decrees of the courts below with costs through out.

K.P.BALACHANDRAN, JUDGE kns/tkv

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