Kerala High Court
Shanmugham Chettiyar vs P.Radhakrishnan Chettiyar on 21 January, 2022
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 21ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943
RSA NO. 711 OF 2015
(AGAINST THE JUDGMENT AND DECREE DATED 31.3.2014 IN
A.S.NO.168 OF 2013 ON THE FILE OF THE COURT OF THE
ADDITIONAL DISTRICT JUDGE-II OF THIRUVANANTHAPURAM - THE
JUDGMENT AND DECREE DATED 29.6.2013 IN O.S.NO.110 OF 2009 OF
THE COURT OF ADDITIONAL MUNSIFF (R.C.C.),
THIRUVANANTHAPURAM)
APPELLANTS/APPELLANT/PLAINTIFF:
1 * SHANMUGHAM CHETTIYAR, AGED 73 YEARS
S/O.IRUTHAPPAN CHETTIYAR,RESIDING ATT.C.21/1416,
(NEW T.C.21/1750),RADHA BHAVAN,NEDUMANGADU,
KARAMANA, THIRUVANANTHAPURAM. (DIED)
THE LEGAL HEIRS ARE IMPLEADED.
ADDL. 2 SEETHALEKSHMI.S, AGED 76 YEARS
W/O.SHANMUGHAM CHETTIYAR, T.C.21/1750,
'RADHABHAVAN',NEDUNCAUD,KARAMANA P.O,
THIRUVANANTHAPURAM,PIN-695002.
ADDL.3 JAYAKUMAR.S.S
AGED 56 YEARS
S/O SHANMUGHAM CHETTIYAR, T.C.54/1676(1),
'AMMA',PAPPANAMCODE, THIRUVANANTHAPURAM,PIN-695018.
ADDL.4 MEENAKUMARY.S.S.
AGED 51 YEARS
D/O. SHANMUGHAM CHETTIYAR,'SREE PADMAM',
OPPOSITE GOVERNMENT L.P.S.,
VATTIYOORKAVU,MANNARKONAM,VATTIYOORKAVU P.O,
THIRUVANANTHAPURAM,PIN-695013.
(THE LEGAL HEIRS OF THE DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER
ORDER DATED 08.09.2021. IN I.A. NO.1/2021)
BY ADV. RAJESH R. KORMATH
R.S.A.Nos.711 & 712 of 2015
2
RESPONDENT/RESPONDENT/DEFENDANT:
P.RADHAKRISHNAN CHETTIYAR
AGED 68 YEARS
S/O.PADMANABHAN CHETTIYAR,
RESIDING AT T.C.17/934,PADMA VIHAR,
THIRUVANANTHAPURAM, PIN-695001.
BY ADVS.SRI.JELSON J.EDAMPADAM
SRI.PIRAPPANCODE V.S.SUDHIR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
10.1.2022, ALONG WITH RSA.712/2015, THE COURT ON 21.01.2022
DELIVERED THE FOLLOWING:
R.S.A.Nos.711 & 712 of 2015
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 21ST DAY OF JANUARY 2022 / 1ST MAGHA, 1943
RSA NO. 712 OF 2015
(AGAINST THE JUDGMENT AND DECREE DATED 31.3.2014 IN
A.S.NO.96 OF 2013 ON THE FILE OF THE COURT OF THE ADDITIONAL
DISTRICT JUDGE-II OF THIRUVANANTHAPURAM - THE JUDGMENT AND
DECREE DATED 29.6.2013 IN O.S.NO.110 OF 2009 OF THE COURT OF
ADDITIONAL MUNSIFF (R.C.C.), THIRUVANANTHAPURAM)
APPELLANT/RESPONDENT/PLAINTIFF:
1 * SHANMUGHAM CHETTIYAR
AGED 73 YEARS
S/O. IRUTHAPPAN CHETTIYAR, RESIDING AT TC 21/1416,
(NEW TC 21/1750), RADHA BHAVAN,
NEDUMANGADU, KARAMANA,
THIRUVANANTHAPURAM.
ADDL. 2 SEETHALEKSHMI.S
AGED 76 YEARS
WIFE OF SHANMUGHAM CHETTIYAR, T.C.21/1750,
'RADHA BHAVAN' NEDUNCAUD, KARAMANA (P.O)
THIRUVANANTHAPURAM,PIN-695002.
ADDL.3 JAYAKUMAR.S.S,
AGED 56 YEARS
SON OF SHANMUGHAM CHETTIYAR, T.C.54/1676(1),
'AMMA', PAPPANAMCODE.(P.O),
THIRUVANANTHAPURAM
PIN-695018.
R.S.A.Nos.711 & 712 of 2015
4
ADDL.4 MEENAKUMARY. S.S,
AGED 51 YEARS
DAUGHTER OF SHANMUGHAM CHETTIYAR,
'SREEPADMAM', OPPOSITE GOVERNMENT L.P.S.,
VATTIYOORKAVU, MANNARKONAM, VATTIYOORKAVU (P.O),
THIRUVANANTHAPURAM, PIN-695013.
(THE LEGAL HEIRS OF DECEASED SOLE APPELLANT ARE
IMPLEADED AS ADDITIONAL APPELLANTS 2 TO 4 AS PER
ORDER DATED 08.09.2021 IN IA.NO. 1/2021)
BY ADV.RAJESH R. KORMATH
RESPONDENT/APPELLANT/DEFENDANT:
P.RADHAKRISHNAN CHETTIIYAR
S/O. PADMANABHAN CHETTIYAR,
RESIDING AT TC 17/934, PADMA VIHAR,
THIRUVANANTHAPURAM-695 036.
BY ADVS.SRI.JELSON J.EDAMPADAM
SRI.PIRAPPANCODE V.S.SUDHIR
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
10.1.2022, ALONG WITH RSA.711/2015, THE COURT ON 21.01.2022,
DELIVERED THE FOLLOWING:
R.S.A.Nos.711 & 712 of 2015
5
K.BABU, J.
-----------------------------------------
R.S.A.Nos.711 & 712 of 2015
------------------------------------------
Dated 21st January, 2022
JUDGMENT
These two appeals arise from the common judgment dated 31.3.2014 in A.S.Nos.96 & 168 of 2013 on the file of the Additional District Court-II, Thiruvananthapuram. The appeal suits arose from the judgment of the Additional Munsiff's Court (RCC), Thiruvananthapuram in O.S.No.110 of 2009 by which the learned Munsiff dismissed the suit as well as the counterclaim preferred by the defendant.
2. The plaintiff is the appellant. The sole defendant is the brother-in-law of the plaintiff. The plaintiff is residing with his family in the plaint schedule building.
3. The plaintiff pleaded that for the purpose of his business, the defendant had borrowed a sum of Rs.30,000/- as instalments during the early seventies. Though the plaintiff repeatedly demanded repayment of the amount, the defendant failed to return the amount. Thereupon, the plaintiff openly started residing in the building hostile to the title of the defendant from 13.12.1975 onwards. Since then, the plaintiff has been holding continuous and peaceful possession of the R.S.A.Nos.711 & 712 of 2015 6 plaint schedule property without interruption from the defendant. On 8.6.1983, the defendant caused to send a lawyer's notice seeking eviction of the plaintiff from the building. On 29.6.1983, the plaintiff sent a reply notice asserting his possession and right over the property adverse to the defendant's title. According to the plaintiff, from the date of reply to the lawyer's notice caused to be issued by the defendant, the plaintiff's possession over the plaint schedule property became adverse to the defendant's title. Thus, the plaintiff acquired title over the plaint schedule property by adverse possession. The defendant is attempting to sell the plaint schedule property to strangers. Therefore, the plaintiff sought for a decree declaring his title and possession over the plaint schedule property and also for a permanent prohibitory injunction against the defendant.
4. The defendant resisted the plaint and set up a counterclaim. According to the defendant, the plaintiff has no right over the plaint schedule property and has no independent residence in the property. The plaint schedule property and the building therein belong to the defendant, which he acquired as per sale deed No.3563/1966. Therefore, the defendant is in absolute possession and enjoyment of the plaint schedule property. The defendant, along with his mother, was residing in the building. The defendant's sister occasionally used to visit R.S.A.Nos.711 & 712 of 2015 7 the property. At that time, the defendant had to shift his residence to Nagarcoil in connection with his business. His mother continued to reside in the plaint schedule property. While so, the defendant's sister, who is the wife of the plaintiff, also joined the mother to look after her. The defendant permitted her residence as his mother needed help.
5. Along with his sister, the plaintiff and their son also joined and they were residing in the plaint schedule property as permitted by the defendant. The plaintiff has no independent right or occupation over the plaint schedule property. The defendant's mother is aged and she is residing with her children according to her desire. The defendant's mother also used to go to the residence of other children. The defendant would go there on and of whenever he is in Thiruvananthapuram. The entire building and the property are in the absolute possession of the defendant. The defendant has every right to evict the plaintiff and his wife from the building. The present suit is an abuse of the process of law. The claim of the plaintiff that he started residing in the plaint schedule property right from 13.12.1975 is not true. The defendant did not borrow any amount from the plaintiff as he pleaded. The occupation of the plaint schedule property by the plaintiff is not in any independent capacity, but only under the defendant. The plaintiff never acquired title by adverse possession or limitation. The R.S.A.Nos.711 & 712 of 2015 8 defendant has every right to alienate the property. In the counterclaim, the defendant prayed for a mandatory injunction compelling the plaintiff to vacate the building. The defendant also claimed Rs.3,000/- per month together with interest at the rate of 12% for the use and occupation of the building.
6. The plaintiff answered the counterclaim raising the plea of adverse possession and denying the version of the defendant that he was residing there under his permission. The plaintiff contended that no request was made by the defendant on 1.10.2008 to vacate the building. The plaintiff would also contend that he had issued a reply to the lawyer's notice dated 8.6.1983 on 29.6.1983 and from that date onwards, the defendant had knowledge that the plaintiff was in adverse possession of the plaint schedule property and the building. Therefore, according to the plaintiff, the claim of eviction after a period of 25 years is barred by limitation.
7. During the trial, PW1 was examined, and Exts.A1 to A8 were marked on the side of the plaintiff. Exts.B1 to B6 were marked on the side of the defendant. No oral evidence was adduced by the defendant.
8. The trial Court dismissed the suit holding that the plaintiff failed to establish the plea of adverse possession. The trial Court R.S.A.Nos.711 & 712 of 2015 9 dismissed the counterclaim also holding that the relief sought for by the defendant is barred by limitation.
9. The plaintiff filed A.S.No.168 of 2013 challenging the judgment of dismissal of the suit and the defendant filed A.S.No.96 of 2013 challenging the judgment dismissing the counterclaim.
10. The First Appellate Court allowed A.S.No.96 of 2013 and set aside the judgment dismissing the counterclaim and dismissed A.S.No.168 of 2013 confirming the judgment and decree dismissing the original suit. The First Appellate Court granted a decree of mandatory injunction directing the plaintiff to surrender vacant possession of the plaint schedule property to the defendant within one month from the date of the judgment.
11. The plaintiff is in appeal before this Court invoking Section 100 of the Code of Civil Procedure.
12. On 20.7.2015 this Court admitted the appeals on the following substantial questions of law:-
"(i) Has the court below misread the evidence on record in holding that in the case on hand, the plaintiff has no case or any evidence to show that his possession which commenced under an alleged agreement for sale has got itself transformed to that of adverse possession to the knowledge of the true owner ?
(ii) Has the court below grossly erred in holding that the claim of absolute ownership over the plaint schedule property R.S.A.Nos.711 & 712 of 2015 10 asserted by the plaintiff in Ext.A2 reply notice of the year 1983, cannot be characterised as an assertion of his right hostile to the title of the defendant, so as to infer the ingredients of a claim based on adverse possession ?
(iii) Has the court below grossly erred in holding that the arrangement between the plaintiff and the defendant with respect to the plaint schedule property was that of a licencee and licensor, contrary to the case pleaded by the parties and the material on record ?
(iv) Is the judgment and decree of the court below vitiated, as the findings rendered in the judgment are contrary to the case pleaded by the parties and the material on record ?"
13. Heard Sri.Rajesh R.Kormath, the learned counsel for the appellant/plaintiff and Sri.Pirappancode V.S.Sudheer, the learned counsel for the respondent/defendant.
14. The learned counsel for the appellant/plaintiff contended that the First Appellate Court misread the evidence on record in holding that the plaintiff failed to establish adverse possession against the defendant. The learned counsel contended that the court below grossly erred in holding that the claim of absolute ownership over the plaint schedule property asserted by the plaintiff in Ext.A2 reply notice in the year 1983 cannot be characterised as an assertion of his right hostile to the title of the defendant and sufficient to conclude that the ingredients of the claim based on adverse possession have been satisfied. The R.S.A.Nos.711 & 712 of 2015 11 learned counsel further contended that the finding of the First Appellate Court that there exists a licencee-licensor relationship between the plaintiff and defendant is contrary to the case pleaded by the parties and the materials on record.
15. Per contra, the learned counsel for the respondent/ defendant would contend that the plaintiff failed to establish the ingredients of adverse possession.
16. The concept of adverse possession in India is fundamentally based on three principles. Firstly, competing rights of ownership between the actual owner and the person taking care of the land. Right of the person who takes care of the land and makes the highest and best use of the land will prevail over the actual title holder of the land who does not take care of the land. In other words, the person who maintains and makes the best use of the land has a better title over the land than the person who is not bothered about the land at all. Secondly, the title of the land should not be kept in abeyance for a long time, that is, a situation should not arise in which the title holder of the land is not known. Thirdly, it is presumed that the actual title holder has abandoned his possessory rights, despite knowing that some other person is claiming hostile possession over his land, but he chooses to R.S.A.Nos.711 & 712 of 2015 12 keep quiet and not take any action against the said person as provided under the law.
17. The law of adverse possession traces back to the Code of Hammurabi. Rule 30 of the Code states thus:
"if a chieftain or a man leave his house, garden, and field and hires it out, and someone else takes possession of his house, garden, and field and uses it for three years: if the first owner return and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it."
18. In a case of adverse possession of land, two aspects are important. Firstly, the nature of possession of land should be exclusive, continuous, uninterrupted and it should be actual physical possession and not merely constructive possession over the land. Secondly, the possession should be hostile to the actual owner. The requisite ingredient of animus possidendi (intention to possess) should be present when claiming ownership by taking the plea of adverse possession.
19. In Perry v. Clissold [(1907) A.C. 73] the Judicial committee of the Privy Council settled the concept of the adverse possession as thus:
"It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions R.S.A.Nos.711 & 712 of 2015 13 of the statute of Limitation applicable to the case, his right is forever extinguished and the possessory owner acquires an absolute title. "
20. In Nair Service Society v. Rev.Father K.C. Alexander (AIR 1968 SC 1165) a three Judge Bench of the Apex Court upheld the principles declared in Perry v. Clissold (supra).
21. In Karnataka Board of Wakf v. Government of India & Others [(2004) 10 SCC 779], the Apex Court considered the nature and acts amounting to adverse possession and held thus:
"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 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 dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period."
22. In P.T. Munichikkanna Reddy & Others v. Revamma & Ors [(2007) 6 SCC 59], while dealing with the concept of adverse possession, the Honourable Apex Court held thus:
"Therefore, to assess a claim of adverse possession, two- pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
R.S.A.Nos.711 & 712 of 2015 14
2. Specific Positive intention to dispossess on the part 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."
23. In Uttam Chand (dead) through LRs v. Nathu Ram (dead) through LRs & Ors [2020 SCC Online SC 37], the Apex Court reiterated that only having long continuous possession is not enough to perfect title by adverse possession and all other ingredients like possession that is hostile, exclusive, uninterrupted, etc., are also necessary.
24. In P.Lakshmi Reddy v. L.Lakshmi Reddy (AIR 1957 SC 314) the Apex Court held that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario. That is, the possession required must be adequate in continuity, in publicity, and in extent to show that it is possession adverse to the competitor. It was also observed that whatever may be the animus or intention of a person wanting to acquire title by adverse possession, his adverse possession cannot commence until he obtains actual possession with the required animus.
25. In Annakili v. A.Vedanayagam [(2007) 14 SCC 308 paragraph 24] the Apex Court held thus:-
"24. Claim by adverse possession has two elements: ( 1) the possession of the defendant should become adverse to the R.S.A.Nos.711 & 712 of 2015 15 plaintiff; and (2) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well known is a requisite ingredient of adverse possession. It is now a well-settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in the said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more does not ripen into a title."
26. In Mohal Lal (deceased) through his Lrs.Kachru & Ors. v. Mirza Abdul Gaffar & Anr. [(1996) 1 SCC 639] the Apex Court held that a party cannot take the plea of adverse possession when the possession of the land is given by one party to another in pursuant to an agreement to sell
27. In Narasamma v. A.Krishnappa [Manu/SC/0610/ 2020], the Apex Court held that the plaintiff, having come into possession under an agreement, to set up a claim of adverse possession, must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the true owner.
28. In Thakur Kishan Singh v. Arvind Kumar [(1994) 6 SCC 591] the Apex Court held that a permissive possession to become adverse there must be cogent and convincing evidence to show hostile R.S.A.Nos.711 & 712 of 2015 16 animus and possession adverse to the knowledge of the true owner and mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession. This position was reaffirmed by the Apex Court in Ram Nagina Rai and Anr. v. Deo Kumar Rai (Deceased) By Lrs. And Anr. (2018 10 SCJ 533 ; [(2019) 13 SCC 324].
29. The rival contentions of the parties are to be considered in the backdrop of the principles discussed above.
30. The case of the plaintiff is that the defendant had borrowed a sum of Rs.30,000/- from him in the early seventies and when the defendant failed to return the amount even after repeated demands, he openly started residing in the building belongs to the defendant hostile to his title from 13.12.1975. The specific case of the plaintiff is that his possession with effect from 13.12.1975 was continuous, peaceful and without any interruption from the defendant.
31. The challenge of the defendant is that he had not borrowed any money as pleaded by the plaintiff. According to the defendant, the plaintiff happened to reside in the plaint schedule building based on the permission given by him to his sister to take care of his mother. The case of the defendant is that the plaintiff being his brother-in-law was permitted to reside in the plaint schedule property R.S.A.Nos.711 & 712 of 2015 17 where the defendant's mother was residing, who was looked after by the plaintiff's wife, who is the sister of the defendant. Therefore, the possession of the property with the permission of the defendant would never amount to acquisition of title by adverse possession.
32. The learned counsel for the appellant relied on Exts.A1 and A2 to establish that he has perfected title over the plaint schedule property by way of adverse possession. By way of Ext.A1, the lawyer's notice dated 8.6.1983, the defendant had demanded eviction treating him as a tenant. In reply to Ext.A1, the plaintiff caused to issue Ext.A2 reply notice denying his status as a tenant as claimed by the defendant. As per Ext.A2, the plaintiff contended that his possession is traceable to an agreement for sale between the plaintiff and the defendant. Thereafter, the defendant has not taken any steps based on Ext.A1 notice.
33. In Ext.A2 the plaintiff has set up a claim pursuant to an agreement for sale. Based on that arrangement in Ext.A2 the plaintiff claimed absolute ownership over the property. Therefore, the claim of the title based on Ext.A2 cannot be characterized as an assertion of title hostile to the title of the defendant.
34. The plaintiff is the husband of the defendant's sister. The specific plea of the defendant is that taking into account the R.S.A.Nos.711 & 712 of 2015 18 relationship between the parties, the plaintiff was permitted to occupy the building. More specifically, the defendant's case is that the mother of the defendant was residing there and his sister, who is the wife of the plaintiff, joined her to take care of her mother.
35. The First Appellate Court, after re-appreciating the entire evidence and pleadings, recorded the finding that the possession of the plaintiff is only permissive.
36. After analysing the pleadings set up by the parties the First Appellate Court found that the trial Court erroneously relied on Article 67 of the Limitation Act on the wrong premise that there existed a landlord-tenant relationship between the parties and found that the counterclaim preferred by the defendant is not barred by limitation. This finding requires no interference.
37. This Court has carefully gone through the pleadings and evidence. There is no reason to conclude that the First Appellate Court has misread the evidence on record while holding that the plaintiff failed to show that his possession commenced under an agreement for sale was later on transformed to that of adverse possession to the knowledge of the defendant. In the light of the pleadings, this Court is unable to treat Ext.A2 reply notice of the year 1983 as an assertion of the plaintiff's right hostile to the title of the defendant. This Court finds R.S.A.Nos.711 & 712 of 2015 19 no reason to interfere with the finding of the First Appellate Court that there exists a licencee-licensor relationship between the plaintiff and defendant. The resultant conclusion is that the plaintiff failed to establish that he has perfected title over the plaint schedule property by adverse possession. The relief of mandatory injunction granted by the First Appellate Court also requires no interference.
The second appeals lack merits and they are dismissed. Both parties are directed to bear their respective costs.
Sd/-
K.BABU Judge TKS