Kerala High Court
Kuriakose vs John.V.Thottam on 25 September, 2007
Author: M.Sasidharan Nambiar
Bench: M.Sasidharan Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 722 of 2007()
1. KURIAKOSE, AGED ABOUT 63 YEARS,
... Petitioner
2. THANKAMMA, AGED ABOUT 52 YEARS,
Vs
1. JOHN.V.THOTTAM, AGED 64 YEARS,
... Respondent
2. JAI PAUL THOTTAM, AGED 62 YEARS,
3. GEORGE THOTTAM, AGED 60 YEARS,
4. MATHEW THOTTAM, AGED 58 YEARS,
5. THRESSIA ANTONY @ TESSY,
6. JOSE BOBAN THOTTAM, AGED 51 YEARS,
For Petitioner :SRI.T.A.UNNIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :25/09/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
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R.S.A.No. 722 OF 2007
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DATED THIS THE 25th DAY OF SEPTEMBER, 2007
JUDGMENT
Defendants 1 and 2 in O.S.451 of 1995 on the file of Munsiff Court, Muvattupuzha are the appellants. First respondent is the plaintiff and other respondents other defendants. First respondent instituted the suit seeking a decree for declaration of title, recovery of possession of the building and permanent prohibitory injunction. Case of first respondent was that plaint schedule property originally belonged to his mother under Ext.A1 sale deed of 1932/1122 M.E of Muvattupuzha Sub Registrar's Office and first respondent and respondents 2 to 6, along with their parents were staying in the building and after the death of the mother on 24.9.1950, father was staying there and he died on 2.10.1983 and on the death of the father the property devolved on respondents 1 to 6 and first respondent is residing at Kozhikode and respondents 2, 3 and 5 are residing at Delhi and respondents 4 and 7 are working in USA and appellants who are husband and wife were permitted to reside in the building and the plaint schedule property continued to be in their possession and apart from the permission to reside in the RSA 722/2007 2 building, appellants have no right over the property and therefore first respondent is entitled to get a decree for declaration of title, recovery of possession of the building and for permanent prohibitory injunction. Appellants in their written statement contended that the property was assigned by the father in their favour for consideration and sale deed was not executed as the children were not in the native place and since then they have been in possession of the property and father of respondents stated that there was no necessity to execute a registered sale deed as jenmom right can be purchased from the Land Tribunal and S.M.108/1991 was initiated by the Land Tribunal, Perumbavoor which was later dismissed and first respondent is not entitled to claim any right or title. It was contended that even if they have title, it is lost by adverse possession.
2. Learned Munsiff, on the evidence of PW1, Dws 1 to 3, Exts.A1 to A6, Exts.B1 to B4 and Exts.C1 and C2, dismissed the suit holding that first respondent did not establish the title and even if there is title, it is lost by adverse possession as appellants are in continuous possession of the property from 1980 onwards. RSA 722/2007 3 First respondent challenged the decree and judgment before District Court, Ernakulam in A.S.291 of 2006. Learned District Judge, on reappreciation of evidence, found that what is contended by appellants was only that property was purchased from the father of respondents and a sale deed will be executed by respondents 1 to 6 and thereby they admitted the title and Ext.A1 proves that respondents 1 to 6 have title to the property. Learned District Judge therefore held that question is whether they lost the title by adverse possession. On appreciation of evidence, learned District Judge found that appellants did not establish that they have perfected the title by adverse possession. Learned District Judge on the evidence also found that possession of the building by the appellants is only under permission and therefore held that first respondent is entitled to get a declaration of their title as well as consequential injunction. But it was held that first respondent is not entitled to a decree for vacant possession of the building. That question was left open to be decided in a fresh suit. Appeal was allowed in part and a decree for declaration of title of appellants and respondents 2 to 6 over the plaint schedule property except the RSA 722/2007 4 building and a decree for injunction was granted. The judgment is challenged in the second appeal.
3. Learned counsel appearing for the appellants was heard. The argument of the learned counsel is that first appellate court was not justified in interfering with the findings of learned Munsiff. It was argued that though first respondent contended that appellants were permitted to reside in the building, the date when permission was granted was not pleaded and though it was deposed by PW1 that the original building was renovated in 1980 and appellants were permitted to reside in the building in 1984, Ext.B2 series establish that the building stands in the name of appellants even earlier to that date and therefore case of first respondent should not have been believed. It was argued that father of respondents received the consideration and made the appellants believe that as jenmom right could be purchased from the Land Tribunal, no separate sale deed was necessary and since 1977, appellants have been in possession of the property and therefore first appellate court should not have interfered with the findings of trial court that appellants have perfected their title by adverse possession. It was also argued that in any RSA 722/2007 5 case first appellate court should have granted the benefit of Section 60 of Indian Easement Act as appellants have constructed the building pursuant to the sale and therefore the decree is unsustainable. Finally it was argued that when the decree granted by first appellate court entitles appellants to reside in the building, decree for injunction would destroy that right as not even a right of entry is provided and therefore decree granted is unsustainable.
4. On hearing the learned counsel, I do not find any substantial question of law involved in the appeal. Ext.A1 sale deed produced by first respondent establish that the title of the plaint schedule property originally belonged to the mother of respondents 1 to 6. Even according to appellants, the property was purchased from the father of respondents and no sale deed was executed as respondents the other legal heirs were not in the native place. Case was that sale deed would be executed later. It was also contended that as the property belonged to Elamkalloor Devaswom, jenmom right can be purchased from the Land Tribunal. There is no evidence to prove that the property belongs to the Devaswom. So also there is no evidence to prove RSA 722/2007 6 that father of first respondent had any exclusive or independent right over the plaint schedule property except the right derived from his wife, the mother of respondents. Therefore as rightly found by first appellate court, title of respondents derived from the mother, the assignee under Ext.A1, cannot be disputed. If that be so, the question is whether that title has been barred by adverse possession and limitation.
5. What was contended by appellants was that plaint schedule property was purchased by them from the father. As rightly found by first appellate court there cannot be an oral assignment of the property. Moreover, even in the written statement, appellants have not disclosed what was the consideration paid. In such circumstances, case of appellants that the property was purchased from the father can only be rejected. When the title of respondents is established, the burden is on the appellants to prove that that title is lost by adverse possession and limitation. Appreciating the evidence, first appellate court found that appellants did not establish that they have perfected the title. Ext.A2 also shows that even before the Land Tribunal, appellants have claimed that they are tenants RSA 722/2007 7 under Annakutty, the mother of respondents. When they claimed that they are tenants under Annakutty, appellants cannot contend that the title of respondents 1 to 6, the legal heirs of Annakutty, was lost by adverse possession. Ext.A2 establishes that appellants did not claim title as against the title of respondents 1 to 6. On going through the judgments of first appellate court, I do not find any reason to interfere with the finding of fact that appellants have not perfected their title by adverse possession or that title of respondents 1 to 6 was not lost by adverse possession.
6. Then the only question is whether appellants are entitled to the protection provided under proviso to Section 60 of the Indian Easement Act. The protection, if at all, will be available only in respect of the building and not with regard to the remaining land. As rightly found by first appellate court when no decree is granted in respect of the building and the right in respect of the building is left open to be decided in a separate suit, the claim for benefit under proviso to Section 60 of the Easement Act is not to be decided in the appeal. In such circumstances I find no substantial question of law involved in RSA 722/2007 8 the appeal. But there is force in the submission of learned counsel that the decree granted will not enable the appellants to enter into the plaint schedule property. Hence while dismissing the appeal, it is made clear that the decree for injunction passed by first appellate court restraining them from taking usufructs from the property or interfering with the enjoyment of the property, will not affect the right of appellants to enjoy the building in their possession.
Appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE lgk/-