Kerala High Court
Bhagavathikandy Chirutha vs Bhagavathikandy Kannan on 20 January, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 511 of 1996()
1. BHAGAVATHIKANDY CHIRUTHA
... Petitioner
Vs
1. BHAGAVATHIKANDY KANNAN
... Respondent
For Petitioner :SRI.R.PARTHASARATHY
For Respondent :SRI.N.L.KRISHNAMOORTHY
The Hon'ble MR. Justice P.BHAVADASAN
Dated :20/01/2011
O R D E R
P. BHAVADASAN, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - -
S.A. No. 511 of 1996
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 20th day of January, 2011.
JUDGMENT
The plaintiff in O.S. 55 of 1991 before the Munsiff's Court, Perambra, who was non-suited by the lower appellate court, is the appellant.
2. The suit was one for recovery of possession on the strength of title and consequential reliefs. The plaintiff claims to have obtained the plaint schedule property as per Ext.A1 partition deed dated 7.8.1970. Item No.3 in the partition deed is the plaint schedule property. Eversince the partition deed, she claims to have been in absolute possession and enjoyment of the property. Item No.1 was allotted to the first defendant and that property is situated on the south-western side of the plaint schedule property. The plaintiff is residing far away from the property. Since the defendant tried to trespass into the property and reduce a portion of the S.A.511/1996. 2 plaint schedule property into his possession, O.S. 93 of 1983 was filed by the plaintiff for the relief of prohibitory injunction. That suit was dismissed since the plaintiff could not establish her possession as on the date of the suit. Hence the present suit based on title.
3. The defendant resisted the suit by pointing out that the suit was barred by res judicata and he has perfected his title by adverse possession and limitation. According to him, as per the oral agreement for sale, he was in possession and the entire sale consideration of Rs.700/- has been paid. Even though he insisted for execution of the sale deed by the plaintiff, the plaintiff managed to get it postponed under one pretext or another. Contending that even if the plaintiff had any manner of right over the property, that had been lost by adverse possession and limitation, he prayed for a dismissal of the suit.
4. Based on the above pleadings, the trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws. 1 and 2 and documents S.A.511/1996. 3 marked as Exts.A1 to A8 from the side of the plaintiff. The defendant had D.Ws. 1 and 2 examined and Exts. B1 to B24 marked. On a consideration of the evidence in the case, the trial court came to the conclusion that the plea of res judicata and adverse possession cannot be countenanced. Finding that the plaintiff had title over the property, a decree was granted in favour of the plaintiff for recovery of possession of the property excluding the portion where a portion of the house of the defendant was situate.
5. Aggrieved by the judgment and decree of the trial court, the defendant carried the matter in appeal as A.S.27 of 1993 before the Sub Court, Quilandy. The lower appellate court disagreed with the trial court on the question of adverse possession and limitation and reversed the judgment and decree and dismissed the suit. Hence this Second Appeal.
6. Notice has been issued on the following questions of law:
S.A.511/1996. 4
"i) When the defendant has admitted in the written statement that the execution of the registered sale deed in pursuance to the alleged oral agreement of sale was postponed on account of his illness, is the lower appellate court correct in law in stating that the possession of the defendant is under an oral sale at that he is entitled to succeed on the ground of adverse possession and limitation.
ii) Is not the decision of the lower appellate court against the law laid down by the Hon'ble Supreme Court in Achal Reddy v. Ramakrishna Raddiar and others (1990(4) SCC 706) as the Hon'ble Supreme Court has clearly stated that the possession of property by a person claiming under an agreement of sale pending execution of a registered sale deed is permissive possession and that such a person cannot claim adverse possession and limitation.
iii) Has not the lower appellate court misread and misunderstood the plead of the case and the decision laid down by the Hon'ble Supreme Court which has resulted in allowing the appeal and reversing the decree and judgment of the trial court."
S.A.511/1996. 5
7. Sri. Parthasarathy, learned counsel appearing for the appellant pointed out that the lower appellate court has erred in law in reversing the judgment and decree of the trial court. The lower appellate court has omitted to note that the claim of the defendant was based on an agreement for sale and possession on that basis could never be treated as adverse to that of the plaintiff. The lower appellate court, according to the learned counsel, has omitted to refer to the oral evidence, which would clearly show that the defendant had no animus to possess the property adverse to the interest of the plaintiff. None of the ingredients necessary to attract the plea of adverse possession and limitation is attracted to the facts of case on hand. It is also pointed out that the trial court has also erred in excluding that portion of her property, which was occupied by a portion of the house of the defendant from being recovered by the plaintiff. At S.A.511/1996. 6 any rate, according to the learned counsel, the lower appellate court has misconstrued the evidence on record and that has resulted in miscarriage of justice.
8. Adv. Lakshmi Narayanan, learned counsel appearing for the respondent, on the other hand contended that the lower appellate court has correctly analysed the evidence on record and has come to the right conclusion. According to him, the so-called agreement for sale was in 1970 and eversince then, the defendant has been in possession of the suit property. It can be seen from the records that he has been paying tax for the property and he has treated the property as his own. At no point of time till the suit is filed, any claim was made by the plaintiff over the suit property. Inspite of several demands the plaintiff did not execute the sale deed. According to the learned counsel, no grounds are made out to interfere with the judgment and decree of the lower appellate court and the appeal is only to be dismissed.
S.A.511/1996. 7
9. The finding of the trial court that the plea of res judicata is not attracted to the facts of the case is confirmed by the lower appellate court also. The trial court was of the view that the plea of adverse possession by the defendant cannot be sustained for the simple reason that his possession originated on an agreement for sale and there was nothing to show that at any point of time thereafter the defendant had asserted his right as adverse to that of the plaintiff. He continued to be in possession on the basis of the agreement for sale and the mere fact that no sale deed had been executed will not result in adverse possession and limitation.
10. The records revealed that there was an earlier suit between the parties as O.S.93 of 1983. That was a suit for injunction simplicitor. That suit was dismissed on the basis of the finding that the plaintiff herein had not proved her possession. The appeal filed as A.S. 64 of 1990 was dismissed by the lower appellate court.
S.A.511/1996. 8
11. In the earlier suit, defendant had raised a plea of oral sale. According to him, the property was agreed to be sold to him for Rs.700/- and he had paid the entire sale consideration and in pursuance to that agreement, he was put in possession of the property.
12. The lower appellate court was greatly impressed by the evidence furnished by D.W.2, who according to the lower appellate court had no reason to speak falsehood and his evidence stands unimpeached. He had spoken about the agreement of sale and also about the payment of Rs.700/- to the plaintiff. The lower appellate court therefore came to the conclusion that all the formalities of a sale had been completed, but for the execution of the sale deed. On that premise, it went on to hold that the defendant had perfected title by adverse possession and limitation.
13. Before going into the evidence and other aspects of the case, it may be useful to ascertain what constitute adverse possession.
S.A.511/1996. 9
14. Adverse possession means possession by a person holding the land on his own behalf or on behalf of some person other than the true owner having a right to immediate possession, provided the true owner is not under a disability or incapable of suing. Adverse possession is hostile to that of a true owner. The absolute, open, notorious and exclusive and continuous possession for a statutory period of time confers a right of ownership over the property. The possession so held by the person must be in denial of the title of the true owner. In order to ascertain whether the alleged acts of a person constitute adverse possession, animus is considered to be the crucial factor.
15. Possession to be adverse, not only it be continuous, but must also be exclusive and hostile. The burden is on the person who pleads adverse possession to establish the same. Adverse possession is an exception in the recognition by law of acquisition of title by lawful means. It means that the possession began in a wrong and it was maintained for a statutory period. The issue of S.A.511/1996. 10 adverse possession is normally considered as the question of fact and law. A legal conclusion is to be drawn from the proved facts. To establish adverse possession, the following ingredients will have to be established:
a. It must be shown that the possession was adequate in publicity, in continuity and in extent.
b. The possession should be overt and without any attempt at concealment so that the person against whom time is running ought to be alerted to exercise his rights, if any.
c. There should be a clear animus to hold the property hostile to that of the real owner.
16. The classical requirements of adverse possession are that the possession must be nec vi, nec clam, nec precario.
17. Learned counsel appearing for the respondent in this appeal pointed out that right from 1970 onwards the possession has been with the defendant and he has been paying tax etc. He has been asserting possession over the S.A.511/1996. 11 suit property and it is also significant to notice, according to learned counsel, the earlier suit by the plaintiff had been dismissed.
18. One may at this point of time refer to the evidence of D.W.1, who claims adverse possession against the plaintiff. In chief examination, he deposed as follows:
" 23
.
."
(I am holding the property on the basis of an oral entrustment by the plaintiff for the last 23 years. Since I was sick and due to some other reasons he could not obtain a sale deed from her.)
19. He also admits in cross-examination that he took steps to have the sale deed executed by the plaintiff and that he had not obtained any receipt for having paid Rs.700/- to the plaintiff. It is interesting to note that in the written statement filed by the defendant he would say that S.A.511/1996. 12 the transaction was effected in the presence of Kunhiraman and Kuzhichalil Kannan. However at the time of evidence he examined another Kunhiraman, whose name does not figure in the written statement at all to prove the transaction. It is seen averred in the written statement as follows:
" 1983 30-
700
."
(When this defendant through Taravath Gopalan Nair demanded the plaintiff and her husband to execute the sale deed on 30.1.1983, they insisted that the market value of the property should be given to them adjusting Rs.700/- already paid and therefore he could not obtain the sale deed.) S.A.511/1996. 13
20. In fact there is no evidence at all to show that Rs.700/- has been paid and there is an agreement for sale by which the plaintiff had been put in possession. The plaintiff would say that the defendant being an adjacent owner trespassed into the property and reduced it into his possession.
21. The issue as to whether a person holding possession on the basis of an agreement for sale can claim adverse possession was considered in the decision reported in Nabeesa Abdul Khader v. Suresh Kurian (2009(1) K.L.T. 1020) it was held as follows:
"Possession by a person who claims to have been put in possession under an agreement for sale cannot be adverse to that of the title holder, but can only be permissive and subservient to the title holder. Of course, nature of the possession which to begin with was permissive can later turn to be adverse."
S.A.511/1996. 14
22. In the decision reported in Achal Reddi v. Ramakrishna Reddiar (AIR 1990 SC 553) it was held as follows:
"In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession. The well-settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. in the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an S.A.511/1996. 15 outright transfer, both parties stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies estopping the transferee from contending that his possession, which the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse."
23. Considerable reliance was placed by the learned counsel for the respondent on the above decision. It was contended that the decision recognizes the principle that if a person is put in possession in pursuance to an oral transfer and deed of transfer is not executed, the transferee S.A.511/1996. 16 keeps possession with the clear animus and on the distinct understanding that he is holding the property on his own behalf.
24. In order to succeed in his plea, the respondent will have to show that there was a clear manifestation of the intention of the owner to divest himself of the right over the property. Normally in the case of an executory contract for sale the possession of the transferee on the date of registration of conveyance is permissive and he will be deemed to be holding on behalf of the owner. The issue regarding adverse possession is considered in detail in the decision reported in P.T. Munihikkanna Reddy v. Revamma ((2007) 6 SCC 59). In the said decision it was held as follows:
"8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "wilful neglect" element on part S.A.511/1996. 17 of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the pat of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
............ ...........
19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession situates, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence. S.A.511/1996. 18
20. While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles.
21. Intention implies knowledge on the part of adverse possessor. The case of Saroop Singh v.
Banto in that context held :
"29. In terms of Article 65 the staring point of limitation does not commence from the date when the right of ownership arises to the plaintiff but commences from the date the defendant's possession becomes adverse.
30. 'Animus possidendi' is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. As in the instant case, the appellant categorically states that his possession is not adverse as that of true owner, the logical corollary is that he did not have the requisite animus."
22. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms:
S.A.511/1996. 19
"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 ) 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."
23. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It S.A.511/1996. 20 follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
............... ...............
31. Inquiry into the starting point of adverse possession i.e. dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point adverse possession and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession have not been disclosed. An observation has been made in this regard in S.M.Karim v. Bibi Sakina.
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for 'several 12 years' or that the plaintiff had acquired 'an absolute title' S.A.511/1996. 21 was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
25. In the decision reported in George Thomas v. Geondy Joseph (2005(1) K.L.T. 864) it was held as follows:
"So far as possession by consent is concerned in The State Bank of Travancore v. Aravindan Kunju Panicker & Ors. (AIR 1971 SC
395) it was held as follows: "A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge pf true owners for a period of twelve years or more." In Ouseph Ouseph v. Mathen Mariyamma (AIR 1954 TC 297) a learned Single Judge held as follows: "The permissive character of possession can be inferred from the attendant circumstances even without direct evidence. If possession is found to be permissive at the inception, the possessor cannot prescribe or sustain title or any claim adversely to the granter of the possession." In Rosily Mathew S.A.511/1996. 22 v. Joseph (1986 KLT SN 62) it was observed as follows: "person who claims title to the property by adverse possession, must definitely allege and prove hos and when adverse possession commenced, what was the nature of his possession and whether the fact of his adverse possession was known to the real owner. A mere suggestion in the relief clause that there was an uninterrupted possession for several 12 years or that the plaintiff had acquired an absolute title is not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea." In State of Rajasthan v. Harphool Singh ((2000) 5 SCC 552) the Supreme Court held as follows:
"Concrete proof of open, hostile and continuous possession is required in order to substantiate a claim of perfection of title by adverse possession - Verifiable details of the nature of the occupation would be essential and mere assertions would not be adequate substitute."
26. Applying the principles in the above decisions in the facts of this case, it can be seen that at no point of S.A.511/1996. 23 time even assuming that there was an agreement of sale and by which the defendant was put in possession of the property, there was any animus on his part to hold the property adverse to the rights of the plaintiff. His evidence already referred to is sufficient to establish that fact. Apart from the fact that there is no acceptable evidence to come to the conclusion that there was an agreement of sale and the consideration was Rs.700/- and it was paid, there was no proof at all to show that the defendant was holding the property adverse to the interest of the plaintiff. At any rate, his induction into possession was permissive and there is absolutely no evidence to show that the character of possession has changed. Since in adverse possession, right is not considered to be a substantive right and one based on waiver, strict proof is insisted upon on the part of the person, who claims adverse possession. Animus possidendi is one of the most significant ingredient of adverse possession. Mere possession for a long time does not mature into adverse possession. The test already stated is S.A.511/1996. 24 nec vi nec clam nec precario. (See the decision reported Chatti Konati Rao v. Palle Venkata Subba Rao (2011 (1) K.L.T. SN 17).
27. In the light of the above principle and also going by the evidence available in the case, it cannot be said that the defendant has succeeded in proving that he has perfected title by adverse possession and limitation. The trial court was justified in coming to such a conclusion. The lower appellate court has erred in law in reversing the same.
28. The above conclusion necessarily requires the appellate court judgment and decree to be set aside. I do so.
29. The trial court has declined mandatory injunction to the plaintiff and also recovery of that property in which a portion of the building of the defendant is situate.
29. Normally recovery should have been allowed of that portion also or if it is felt that since the building has been there for a long time, it may not be proper to order S.A.511/1996. 25 recovery of possession, compensation could be awarded in equity. However, in the case on hand the parties are close relatives and since the building has been in existence for a long time, it is felt that the view taken by the trial court is fully justified.
In the result, this appeal is allowed and the impugned judgment and decree are set aside and the judgment and decree of the trial court are restored.
P. BHAVADASAN, JUDGE sb.