Kerala High Court
George vs Mathew Thomas @ Kunjappan on 25 September, 2012
Author: K.Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
TUESDAY, THE 25TH DAY OF SEPTEMBER 2012/3RD ASWINA 1934
RSA.No. 1081 of 2005 ( )
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AS.236/2005 of D.C. & SESSIONS COURT, ERNAKULAM
OS.680/1996 of MUNSIFF COURT,MUVATTUPUZHA
APPELLANTS/APPELLANTs/RESPONDENTS/DEFENDANTS:
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1. GEORGE, S/O.PHILIPOSE,
THENASSERIL, MANNATHOOR KARA, THIRUMARADY.
2. SALOMY, W/O.GEORGE OF DO.DO.
3. PHILIPOSE, S/O.VARGHESE, OF DO.DO.
BY ADVS.SRI.H.SIVARAMAN
SRI.MATHEW CHERIAN
RESPONDENT/APPELLANT/PLAINTIFF:
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MATHEW THOMAS @ KUNJAPPAN,
S/O.THOMACHAN, KAROTTEPUNNAMATTATHIL
RESIDING AT THOMAPLACKAL PUTHENPURAYIL
ARAKUZHA KARA, ARAKUZHA VILLAGE, MUVATTUPUZHA.
R, BY ADV. SRI.THOMAS M.JACOB
R, BY ADV. SRI.G.RAJAGOPAL
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
25-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K. VINOD CHANDRAN, J
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RSA No. 1081 of 2005
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Dated this the 25th day of September, 2012
J U D G M E N T
Mathai, who held considerable extent of properties, by Ext.B4 deed of 1122 M.E, effected partition of the properties in his possession, among his wife and children. Chacko and Thomman, two sons of Mathai were set apart different extents of properties. In addition to that, 2 acres of property with a residential building thereon was set apart to the share of Rahel, Mathai's wife, conferring life interest on her. After the death of Rahel, the said 2 acres of property, even according to the deed of 1122 M.E was to devolve upon Thomman and Chacko, equally. Thomman was to get 1 acre of property on the western half and Chacko, the 1 acre with a building on the eastern half. There is also no dispute that the said 2 acres was bounded on all sides by Mathai's properties. The dispute in the present second appeal is with respect to 29 cents 623 sq. links, more fully described in the plaint which, admittedly, is within the 2 acres comprised in B schedule of deed of 1122 M.E. RSA.1081/2005 : 2 :
2. Rahel was in possession of the said two acres of property and she died on 11.7.1979 as is evidenced by Ext.B10. It is the case of the plaintiff that the 2 acres of property then devolved upon his father Thomman and his father's brother Chacko. They were holding the same along with other properties in their ownership and possession and had been carrying on cultivation thereon. There was absolutely no demarcation of boundaries. Chacko had in the year 1985, by an exchange deed Ext.B8, exchanged the said 1 acre of property with his son. Chacko's son Prince thus by Ext.B8 came into possession of the 1 acre lying to the east of the 2 acres which was originally in the possession of Rahel. Thomman by gift deed Ext.A1 dated 31.3.1992 gifted his 1 acre lying to the western side, to the plaintiff; his son. The plaintiff and Prince, children of Thomman and Chacko were also peacefully enjoying the properties.
3. Then, in the year 1992, Prince sold some properties to the defendants 1 and 2. In 1993 the 1 acre which stood in the possession of Rahel, and after her death devolved on Chacko; was also sold to defendants 1 and 2 by Ext.B7 dated 1.2.1993. The plaintiff and the defendants 1 and 2 are admittedly in RSA.1081/2005 : 3 : possession of 1 acre each respectively on the west and east and has valid title to the same.
4. The dispute arose in the year 1993 immediately after the defendants obtained Chacko's share in the 2 acres. The plaintiff apprehended trespass into his 1 acre of property lying to the west of the defendant's property. The plaintiff filed suit O.S No.77 of 1993 wherein the first defendant was Prince, the predecessor-in-interest of the defendants 1 and 2 and defendants 2 to 4 were the defendants 1 to 3 herein. Defendants 1 and 2, being abroad then, the father of the first defendant D3, filed a joint written statement along with Prince. Two commissions were taken out by the plaintiff in the said suit. However, alleging encroachment into the plaintiff's property, the plaintiff withdrew O.S No.77 of 1993 with liberty and filed the suit from which this second appeal is filed by the unsuccessful defendant before the first appellate court.
5. The plaintiff in O.S No. 680 of 1996, the present suit, alleged that 29 cents and 623 sq.links of his property was encroached upon by the defendants 1 to 3 and the yield thereon was also being taken by the said defendant. The RSA.1081/2005 : 4 : plaintiff hence claimed recovery of possession and mesne profits. The defendant filed written statement contending that the Commissioner's report in the earlier suit clearly showed that the properties were demarcated by a natural boundary; more specifically a stream running north to south, dividing the property. This 29= cents claimed by the plaintiff lies to the east of the stream and is comprised in the 1 acre which devolved upon Chacko on the death of Rahel and then, came into the possession of Prince by way of exchange and eventually into the possession of the defendants by sale deed Ext.B7 in the year 1993. The defendant claimed that the defendants and the predecessors-in-interest were holding the said property on the strength of the partition effected in 1122 M.E and the separate holding of the predecessors-in-interest; commenced immediately after the death of Rahel. It was the specific contention that the stream was the natural boundary and the properties were held separately taking the stream as the natural boundary separating the properties of Thomman and Chacko. The Commission reports filed in the earlier suit were marked in the present suit and the Commissioners were also examined.
RSA.1081/2005 : 5 :
6. The trial court on the premise that the pleading of the plaintiff with respect to encroachment in the year 1995 is factually incorrect since the Commissioner in the earlier suit had reported that the said property was in the possession of the defendants even in the year 1993, found that the encroachment pleaded by the plaintiff was incorrect on facts. The separate holding has to relate back to the death of Rahel in 1979 and in such context the defendants and their predecessors-in-interest having held the properties separately, the title of the defendants was found to be perfected by passage of time. The limitation for perfecting the title on a claim of adverse possession being 12 years, the suit was dismissed on the premise that the said period had elapsed.
7.The plaintiff was in appeal before the first appellate Court. The first appellate court reversed the findings of the trial court on the ground that possession alone would not enable the defendants to perfect their title. The first appellate court also considered the specific averments in the written statement as also the evidence led in the nature of examination of DWs2 to 4. It was the specific finding of the first appellate court that the defendants but for establishing RSA.1081/2005 : 6 : their possession did not at all plead or prove that they were holding such property adversely with hostile animus to the title of the plaintiff. The questions of law raised in the above appeal are the following:-
a. Whether the appellants have factual physical possession of the property with the ingredients of corpus and animus and whether such possession was excluding the original owner?
b. What is the impact of application of Article 65 of the Limitation Act on the facts of the case especially when the plaintiff failed to prove the date of dispossession?
c. Was the Lower Appellate Court justified in non-consideration of the very important piece of evidence as to the non possession of the scheduled property even on the death of Rahel on 11.7.1979 on which date admittedly the succession opened in favour of the plaintiff? If so what is the impact of the said piece on the rest of the evidence of DW1 to RSA.1081/2005 : 7 : DW4?
d. Was the analysis of evidence ignoring the above piece confining only to the rest of the oral evidence is a real appreciation of evidence in law? Or does it amount misreading of evidence?
8. Admittedly, the plaintiff's title over the property cannot at all be assailed. The plaintiff has averred and it has been so established in evidence that the plaint schedule property having an extent of 29 cents 623 links are properties comprised in the 1 acre which devolved on Thomman, the plaintiff's father; on his mother Rahel's death. The defendants' contention in the written statement, specifically noticed by the first appellate court, was that the boundary of the properties separating the property that devolved on Thomman and Chacko, is a stream running north to south, cutting the property. It is their case that the properties lying east of the stream was always held and possessed by the defendants and their predecessors-in-interest. The plaintiff had been in possession of only those properties lying to the west of the stream as was possessed and held by his predecessor-in- RSA.1081/2005 : 8 : interest, his father.
9. The contention would be that it was on the understanding that the respective properties were divided by the stream that the properties were separately held. This is not to say that the defendant or their predecessor-in- interest had been holding such properties adverse to the title of the plaintiff or his predecessor and with hostile animus. Even the contention that the natural boundary was the stream cutting through the property is one emanating from the Commission report filed in the earlier suit. The Commission report refers to a stream and that was relied upon by the defendants to contend that it was so held right from 1979, when the properties of Rahel devolved upon her two children. The primary fallacy in the said contention would be revealed on a glance at the plaint schedule property. The plaint schedule property is shown as having an extent of 29 acres 623 sq.links. The said property is bounded on three sides; the south, west and north by the plaintiff's own properties. Eastern boundary is shown as the defendant's property. If as contended by the defendant, the stream was considered as the boundary; cutting the two properties and also the basis of the separate RSA.1081/2005 : 9 : holding in exclusion to the other, then, there would have been no properties of the plaintiff to the eastern side of the stream. The plaint schedule property lying to the east of the stream is bounded on the north and south by the plaintiffs own property.
10. Further, even in the earlier suit, a written statement was filed by D4 who is the father of D1 herein and the predecessor-in-interest, Prince K Jacob being the first defendant in that suit. Neither the predecessor-in-interest nor the 3rd defendant who was representing the interest of defendants 1 and 2 had a case that the properties were enjoyed by either defendants with hostile animus to the title of the plaintiff. It was also contended that the defendant's predecessor-in-interest had measured out the properties while conveying them to the defendants 1 and 2. It was also specifically averred that the plaintiff's properties were never measured or demarcated. If at all any reliance can be placed on the report of the Commissioner in the earlier suit regarding the possession of the defendants in the year 1993 itself, that would only reveal that the defendant had been in possession from 1993 onwards definitely with hostile animus. That would RSA.1081/2005 : 10 : have led to the filing of the earlier suit and subsequently the present suit.
11. It cannot at all be inferred that such possession with hostile animus was carried on by the predecessors-in-interest also after the devolution on the sons of Rahel. Much reliance has been placed by the learned counsel for the appellants on the date of death of Rahel. But for the fact that Rahel died in the year 1979, there is nothing on record to show that after her death the properties were demarcated and were held and enjoyed by the predecessors-in-interest of the plaintiff and the defendants separately. It is the specific contention of the plaintiff that the properties were lying as one along with other properties set apart for the share of the sons of Rahel. The evidence established does not at all go to show that these properties were held by the predecessors-in-interest with hostile animus against the title holder. The first appellate court has also found that the defendants have admitted that the disputed, plaint schedule property, is included in deed No.1378/92. The witnesses arrayed on the side of the defendants also spoke of usufructs of the property being taken by the defendants after they came into possession. RSA.1081/2005 : 11 :
12. The learned counsel for the respondent has relied on Deva v. Sajjan Kumar( (2003)7 SCC 481), Annakili v. A vedanayagam and others(2007 KHC 4202) and Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan (2008 KHC 4892) to contend that mere possession of the defendant for any number of years without intention to possess the properties adversely to the title of the plaintiff and with such notice to the plaintiff cannot result in acquisition of title by prescription.
13. In Deva V. Sajjan Kumar(Supra), the Supreme Court was concerned with land which was admittedly, in the possession of the defendant for 10 to 12 years. It was admitted by the defendant that he knew of the said land being actually belonging to the plaintiff only on measurement being carried out just prior to suit. Mere long possession without intention to possess adversely to the title of the plaintiff and without the plaintiffs knowledge could not, it was held, result in acquisition of title by prescription. The Supreme Court quoted a number of decisions in Annakili(supra) to reiterate that mere possession of land would not ripen into possessory title to claim adverse possession. Possessor should have RSA.1081/2005 : 12 : animus possidendi and hold the land adverse to the title of the true owner continuously for more than 14 years. While condemning the law of adverse possession as irrational, illogical and wholly disproportionate, the settled principle of the possession being 'nec vi nec clam nec precario' (not by force, nor by stealth nor license) was reiterated in Hemaji Waghaji Jat's case(supra). In the context of adverse possession of land; to be adverse such possession should be without force, without secrecy and without permission. Law of adverse possession is against the principles of equity. Defeating the rights of the true owner has to be open with the object of continuous possession in exclusion of the true owner with his knowledge and can only materialize by the acquiescence of the true owner, who looses his right to access the Court by reason only of passage of time-the rigors of limitation.
14. In the light of the ratio laid down by the Supreme Court and the facts revealed in the above case, this Court is of the opinion that the judgment of the trial court was rightly reversed by the first appellate court. The appellants/defendants though had factual physical possession RSA.1081/2005 : 13 : of the property, the essential ingredient for perfecting a title by adverse possession being the animus possidendi was not there. Even going by the contentions of the defendant the plaint 'B' schedule property was held by them and enjoyed by them on the belief that it belongs to their predecessor-in- interest. Such belief was put across on the strength of the understanding regarding the natural boundary being the stream dividing the two properties. The defendant came into the possession of the property only in the year 1992 and 1993 and that too after their predecessor-in-interest measured out the property and put them in possession and ownership. Any possession from that point even with the ingredient of hostile animus cannot bring the case under Article 65 of the Limitation Act. The plaintiff had approached the Court in the year 1996 itself. There was no evidence on record to show that the predecessor-in-interest of the plaintiff and the defendants were holding separate; the two properties. In any event nobody has a case that Chacko held any property of Thomman, with animus possidendi; or Prince, Chacko's son against Thomman or Thomman's son, the plaintiff. The evidence of DW1 to 4 does not at all deal with the time prior to RSA.1081/2005 : 14 : the defendant coming into possession of the property. The death of Rahel having occurred in 1979, in the opinion of this court is not at all relevant since there is nothing material to reveal that the properties were held separately even from that time. Prince also in the earlier suit had no such case. There is absolutely no misreading of the evidence by the first appellate court and the conclusion was one eminently possible from the analysis of the material on record. The questions of law raised by the appellant in the Second Appeal are answered against the appellant and in favour of the respondent/plaintiff.
The second appeal is rejected with costs throughout.
Sd/-
(K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge