Thazhe Puthusseri Moossa vs Kalluvettukuzhiyil Abdulla on 12 March, 2010

[Cites 13, Cited by 0]

Kerala High Court

Thazhe Puthusseri Moossa vs Kalluvettukuzhiyil Abdulla on 12 March, 2010

This litigation which has a chequered career to its credit started in the year 1966 though dispute started even much before that. This is the second time this case is coming up before this Court in the Second Appeal though parties had the privilege of coming to this Court on other occasions also challenging or supporting certain interlocutory orders passed by the trial court. The suit was originally filed by plaintiff Nos.1 to 6 with the present plaintiff as defendant No.7 and the contesting defendant as defendant No.8 for partition and separate possession. They claimed that the suit property belonged in jenm to Moorchilot tarwad under which Puthukkudi Bavachi obtained a right of tenancy. He executed Ext.A1, kanom kuzhikanom assignment deed dated 2.9.1899 in favour of his son, Puthukkudi Ammad who had no male issues and died intestate. His tenancy right devolved on his legal heirs - daughter, Mariyam getting 6/9 shares brother, Avulla Haji getting 2/9 shares and the remaining 1/9 share going to his sister, Mariyam. Plaintiff Nos.1 to 6 and defendant Nos.1 to 6 are legal R.S.A. No.614 of 2004 -: 2 :- representatives of sister, Mariyam. Thus, 1/9 share belonged to plaintiff Nos.1 to 6 and defendant Nos.1 to 6. It is their further case that daughter, Mariyam and brother, Avulla Haji (of Puthukkudi Ammad) assigned their 8/9 shares to defendant No.7 (plaintiff) as per Ext.B2, assignment deed dated 12.8.1965 while defendant Nos.1 and 2 assigned their fractional interest in the 1/9 share to defendant No.8. Plaintiff Nos.1 to 6 sought partition and separate possession of their fractional interest in the 1/9 share claiming that they along with other co-owners (defendant Nos.1 to 8) are in joint possession and enjoyment of the suit property. Defendant No.8 contended that Puthukkudi Bavachi or his son, Puthukkudi Ammad had no right, title, interest or possession over the suit property and hence legal heirs of Puthukkudi Ammad have not acquired any right by inheritance. He claimed that Mariyam, sister of Puthukkudi Ammad predeceased the latter and hence defendant Nos.11 to 18 (original plaintiff Nos.1 to 6) and defendant Nos.1 to 6 could acquire no right in the suit property. It is also contended that at the time of death of Puthukkudi Ammad his second wife, Combi Mariyam was alive, later she also died and without her legal heirs on the party array the suit is liable to be dismissed for non-joinder of necessary R.S.A. No.614 of 2004 -: 3 :- parties. Defendant No.8 claimed that the suit property (which according to him is only about 52 cents) originally belonged to Vadakkedath Ammad as per a registered document dated 11.2.1925. Defendant No.1 and her husband, the late Puthukkudi Anthruman (who is the son of Mariyam, sister of Puthukkudi Ammad) got the property on oral lease from the said Vadakkedath Ammad on Thulam 15, 1118 M.E. for a rent of Rs.2/- per month. Vadakkedath Ammad assigned his right to the said Puthukkudi Anthruman as per a registered document dated 03.03.1952. While defendant No.1 and her husband, Puthukkudi Anthruman were in possession and enjoyment of the property, Puthukkudi Anthruman created lease of the same in favour of defendant No.1 (his wife) and defendant No.2, their son as per a registered lease deed dated 20.4.1965 for a period of 12 years fixing rent of Rs.50/- per year. On the death of Puthukkudi Anthruman his right over the property devolved on defendant Nos.1 and 2. Defendant Nos.1 and 2 assigned their right in the suit property to defendant No.8 as per registered document dated 5.6.1965. Thus the suit properly absolutely belong to and is in the possession of defendant No.8. He purchased jenm right over the property from the Land Tribunal as R.S.A. No.614 of 2004 -: 4 :- per purchase certificate dated 1826 of 1978. Defendant No.8 contended that defendant No.7 (plaintiff) had earlier filed O.S. No.660 of 1966 for partition of the very same property with himself and others on the party array and that suit was withdrawn without getting leave of the court to file a fresh suit and hence the present suit is not maintainable in view of Order XXIII Rule 1(4)(b) of the Code of Civil Procedure (for short, "the Code"). He further contended that he had filed O.S. No.392 of 1966 against original plaintiff Nos.1 to 3, 5, defendant Nos.1, 2 and others (defendant No.7, transposed as plaintiff was not a party in that suit) and though the suit was dismissed by the trial court he got a decree for protection of his possession in the appeal and hence the present suit is barred by res judicata. He also contended that right of plaintiffs and defendant Nos.11 to 18 if any in the suit property is lost by adverse possession and limitation.

2. Defendant No.7 (plaintiff) while supporting derivation of title pleaded by defendant Nos.11 to 18 (originally plaintiff Nos.1 to 6) claimed 8/9 shares in the suit property he having purchased the share of Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad as per Ext.B2, assignment deed dated R.S.A. No.614 of 2004 -: 5 :- 12.8.1965. It is also his case that while so in the year 1965 there was a dispute between himself and defendant No.8 as to right and possession of the property and the dispute was mediated and settled. As per that, defendant No.7 (plaintiff) is in possession of the northern half of the suit property along with the house situated thereon while the southern half was put in the possession of defendant No.8. Defendant No.8 is only a co-owner and his purchase of the jenm right is on behalf of other co-owners and at any rate, defendant No.7 (plaintiff) is not a party to the proceeding of the Land Tribunal which resulted in issue of purchase certificate No.1826 of 1978. Defendant No.7 (plaintiff) claimed his 8/9 shares in the suit property. He also has a purchase certificate to his credit from the Land Tribunal.

3. With the above pleadings contesting parties went for evidence. It was revealed from the evidence (Exts.B4 and B5) that Mariyam, sister of Puthukkudi Ammad had predeceased him and hence her legal representatives plaintiff Nos.1 to 6 and defendant Nos.1 to 6) could not inherit any right in the suit property. It also turned out that in that situation if case of defendant Nos.7 and plaintiff Nos.1 to 6 were correct, legal representatives of R.S.A. No.614 of 2004 -: 6 :- Puthukkudi Ammad who could inherit the property were his daughter, Mariyam and brother, Avulla Haji whose right defendant No.7 (plaintiff) purchased as per Ext.B2 dated 12.8.1965. In the meantime, plaintiff No.2 died and her legal representatives were impleaded as additional plaintiff Nos.8 to 10. At that stage defendant No.7 applied for and got himself transposed as supplemental plaintiff No.7) and plaintiff Nos.1, 3 to 6 and 8 to 10 were transposed as defendant Nos.11 to 18. In the meantime responding to the contention of defendant No.8 that legal representatives of Combi Mariyam were necessary parties, they were impleaded as supplemental defendant Nos.9 and 10. Learned Munsiff held that going by the evidence (Exts.B4 and B5) Mariyam, sister of Puthukkudi Ammad had predeceased him, defendant Nos.11 to 18 (plaintiff Nos.1, 3 to 6 and 8 to 10) and defendant Nos.1 to 6 who are legal representatives of the said Mariyam could not acquire any right by inheritance and since according to defendant No.7 (plaintiff) Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad assigned their right in favour of defendant No.7 (plaintiff) the latter should be taken as the absolute owner of the suit property in which case a suit for partition would not lie. The suit was R.S.A. No.614 of 2004 -: 7 :- dismissed. Defendant No.7 (plaintiff) took up the matter in appeal (A.S.No.117 of 1984). In that appeal he filed an application for amendment of the plaint to incorporate a prayer for recovery of possession of the suit property. First appellate court dismissed the application and later dismissed the appeal as well agreeing with view of the trial court. Defendant No.7 (plaintiff) challenged that judgment and decree in this Court in Second Appeal No.287 of 1990. It was contended that even if it is assumed that a suit for partition as such would not lie, defendant No.7 (plaintiff) having claimed only 8/9 shares in the suit property (even if he may have been entitled to the entire property) he is entitled to get that much share in the suit property. This Court allowed the Second Appeal by way of remand observing that if the contention of defendant No.7 (plaintiff) were to be accepted he is entitled to get 8/9 shares (which alone he claimed in the suit) and it must be taken that he has relinquished his right over the remaining 1/9 share. This Court observed that trial and first appellate courts were not justified in dismissing the suit and instead, should have granted a decree for 8/9 shares if case of defendant No.7(plaintiff) were accepted, by ordering a partition. This Court did not interfere with the R.S.A. No.614 of 2004 -: 8 :- dismissal of the application for amendment to incorporate a prayer for recovery of possession. Case went back to the trial court. After remand defendant No.7 (plaintiff) produced certain revenue receipts and receipts for alleged payment of pattom to the jenmi. Trial court came to the conclusion that defendant No.7 (plaintiff) acquired title and possession over the suit property, plea of adverse possession and limitation raised by defendant No.8 is not sustainable and passed a preliminary decree for partition and separate possession of 8/9 shares claimed by defendant No.7 (plaintiff). That judgment and decree were confirmed by the first appellate court. Hence this Second Appeal.

4. The following substantial questions of law are framed for a decision:

(i) Is the renewal as per Ext.A8 in 1965, of a lease which commenced before 1.4.1964 hit by Section 74 of the Kerala Land Reforms Act (for short, "the KLR Act")?

(ii) Is not the suit barred by the dismissal of O.S. No.660 of 1966 (filed by the same plaintiff for the same relief) as withdrawn R.S.A. No.614 of 2004 -: 9 :- as per Ext.B10, order when permission to institute a fresh suit was not granted to the plaintiff?

(iii) Has not the suit abated due to non-

impleadment of the legal representatives of defendant Nos.9 and 10 and is not the suit barred by non-joinder of necessary parties?

(iv) Have not the courts below acted illegally in holding in favour of title claimed by defendant No.7 (plaintiff) in view of the nature of the documents produced by him and the preliminary evidence produced by defendant No.8?

                     (v)   Have    not  courts    below    acted

              illegally   in  holding  that   defendant    No.7

(plaintiff) was in possession of the suit property in view of the facts even as admitted by defendant No.7 (plaintiff)?

(vi) Have not courts belong gone wrong in not holding that defendant No.8 has R.S.A. No.614 of 2004 -: 10 :- perfected title by adverse possession and limitation?

5. I shall deal with the question whether dismissal of O.S.No.660 of 1966 without giving liberty to file a fresh suit as evidenced by Ext.B10, order operated as a bar against institution of the present suit. Learned Senior Advocate, Shri T. Krishnanunni appearing for appellant/defendant No.8 has referred to me the provisions of Order XXIII Rule 1(4)(b) of the Code which stated that if the plaintiff abandoned the suit or part of the claim or withdrew from the suit or part of the claim without permission referred to in sub-rule (3) he shall be precluded from instituting a fresh suit in respect of the subject mater or part of such claim. According to the learned Senior Advocate Ext.B10, order dated 30.1.173 in O.S. No.660 of 1966 would show that invoking the power under Sec.151 of the Code learned Munsiff permitted defendant No.7 (plaintiff) to withdraw that suit for partition without reserving any right to file a fresh suit and hence the suit at the instance of defendant No.7 (plaintiff) cannot be maintained. Learned Senior Advocate has placed reliance on the decisions in R.Ramamurthi Aiyar v. R.S.A. No.614 of 2004 -: 11 :- Raja V.Rjeshwararao (AIR 1973 SC 643) and Manohar Singh v. Sardar Bai (AIR 1987 Rajasthan 177). It is also the contention of learned Senior Advocate that in O.S.No.660 of 1966 defendant No.8 had resisted the suit setting up independent title for himself and raising a plea of adverse possession and limitation and it is thereafter that defendant No.7 (plaintiff) sought withdrawal of the suit and hence it cannot be said that cause of action for seeking partition continued even after the disposal of O.S. No.660 of 1960. Reliance is placed on the decision of the Delhi High Court in S.Jaswant Singh v. S.Darshan Sing (AIR 1992 Delhi 78). Learned Senior Advocate, Shri P.N.K. Achan appearing for defendant No.7 (plaintiff) contended that no question of bar of the suit under Order XXIII Rule 1 (4) (b) of the Code arose.

6. This Court in Order of the Holy Cross v.

Fr.Lonappan Thatathil & Another (1989 (2) KLJ 360) has stated that the expression, "subject matter of the suit" occurring in Order XXIII Rule 1(4) of Code meant plaintiff's cause of action in the suit and if that be so, a suit on a different cause of action in respect of the same subject matter is not barred. A reading of Ext.B10, order shows that defendant No.7 (plaintiff) who was R.S.A. No.614 of 2004 -: 12 :- plaintiff in O.S. No.660 of 1966 sought permission of the court to withdraw that suit on the ground that in view of the contentions raised by defendant No.8 he had to get several documents to prove his contentions for which he found time to be too short since the case had already been brought up for trial in the list along with O.S. No.392 of 1966 filed by defendant No.8 seeking decree for prohibitory injunction against some of the parties in O.S. No.660 of 1966 (defendant No.7 (plaintiff) was not a party in O.S. No.392 of 1966) trespassing into the suit property. Application was opposed by defendant No.8 and at the time of hearing learned counsel for defendant No.7 (plaintiff in O.S.No.660 of 1966) gave up the prayer for permission to file a fresh suit. Noting that, trial court held that in that situation application can be treated as one filed under Sec.151 of the Code and permission to withdraw the suit was granted at the risk of defendant No.7 (plaintiff in that suit) without reserving right to file fresh suit. It is thereafter that plaintiff Nos.1, 3 to 6 and 8 to 10 (now transposed as defendant Nos.11 to 18) filed the present suit for partition and defendant No.7 got himself transposed as plaintiff while plaintiff Nos.1, 3 to 6 and 8 to 10 moved on to the defence as defendant Nos.11 to 18. Though the R.S.A. No.614 of 2004 -: 13 :- suit is not instituted by defendant No.7 (plaintiff) so far as a suit for partition among co-owners is concerned there could be no distinction between a plaintiff or defendant and hence when defendant No.7 (plaintiff) claimed 8/9 shares and separate possession he was also in the position of a plaintiff and hence he being on the side of defendants or defendant Nos.11 to 18 as plaintiffs could not exclude the application of Order XXIII Rule 1(4)(b) of the Code if it were otherwise applicable. At least that provision should apply when defendant No.7 got himself transposed as plaintiff and plaintiff Nos.1, 3 to to 6 and 8 to 10 moved on to the defence as defendant Nos.11 to 18. But I am afraid, a contention based Order XXIII Rule 1(4)(b) of the Code is not available to defendant No.8 at this stage. Reason is that bar of suit under Order XXIII Rule 1 (4)(b) of the Code was not highlighted by defendant No.8 either in the trail or first appellate court (before remand) and at any rate, not before this Court in S.A. No.287 of 1990. After hearing counsel on both sides this Court directed that assuming that defendant No.7 (plaintiff) is the absolute owner of the property he has claimed only 8/9 shares in the property and if his title is upheld and claim of defendant No.8 that it is lost by adverse R.S.A. No.614 of 2004 -: 14 :- possession and limitation is not found in favour, there is nothing illegal in defendant No.7 (plaintiff) being given his 8/9 shares in the suit property. In that view of the matter judgment and decree of the courts below were set aside and the case was remitted to the trial court for fresh decision. In paragraphs 3 and 4 of the judgment this Court observed, "It appears to me that there is no necessity to allow the amendment in this case.

In my view even if the court finds that the additional 7th plaintiff is the absolute owner of the property and that he has claimed only recovery of 8/9 shares therein, there is absolutely no impediment in granting him a decree for partition. It would only mean that the appellant has not claimed the full relief he would have been entitled to but he is satisfied with a lesser relief. The courts below have clearly noted illegality in refusing to consider the case of the appellant on merits on a view that the suit for partition could not be maintained. Apart from illegality the decision also shows lack of imagination. If it was a question of court fee, the courts below could R.S.A. No.614 of 2004 -: 15 :- have called upon the appellant to pay the appropriate court fee.

In view of the fact that the additional 7th plaintiff has claimed only 8/9 shares in the property and did not chose to claim the full relief when he got himself impleaded as additional 7th plaintiff, it must be taken that he has relinquished his earlier claim over 1/9 share in the property. In that view I do not think it necessary or proper to permit the appellant to amend the plaint to seek recovery of possession. Therefore I am not inclined to interfere with the order of the lower appellate court regarding the refusal of the prayer for amendment of the plaint."

It is taking that view that case was remanded to the trial court and direction was issued to the trial to "consider the issue of title to the property and also the question as to whether the title of the plaintiff (if any) is barred by adverse possession. To obviate any future protraction in this proceeding the trial court will enter findings on both these questions whatever may be the view it may came to on the question of title. If it is found that the plaintiff has title and that R.S.A. No.614 of 2004 -: 16 :- it is not lost by him by adverse possession the appellant would be granted a decree for partition notwithstanding the fact that it is found that he has absolute title over the property". In the operative portion this Court has directed that trial court has to conduct fresh trial and disposal in accordance with law "in the light of what I have stated above and untrammelled by any of the observations contained in the judgments challenged in this Second Appeal". In other words judgment by way of remand directed the trial court to consider two issues: whether appellant (defendant No.7) has title over the property and if so it is lost by adverse possession and limitation. Trial court as well as the first appellate court were bound by the remand which became final and consider those issues. This Court entertaining the Second Appeal from the judgment and decree of the first appellate court (after remand) cannot go behind the remand judgment in view of Sec.105 of the Code. Therefore the contention that the suit is barred under Order XXIII Rule 1(4) (b) of the Code in view of Ext.B10, order withdrawing O.S. No.660 of 1966 without permission to file fresh suit cannot be sustained. The question of law framed is answered accordingly.

R.S.A. No.614 of 2004 -: 17 :-

7. Next question is whether suit abated due to non- impleadment of legal representatives of deceased defendant Nos.9 and 10 and whether on account of such non-impleadment the suit is to be dismissed for non-joinder of necessary parties. Defendant No.8 raised a contention that in the way defendant No.7 (plaintiff) and plaintiff Nos.1, 3 to 6 and 8 to 10 (transposed as defendant Nos.11 to 18) claimed right in the suit property, children of Combi Mariyam, second wife of Puthukkudi Ammad are necessary parties to the suit. In the light of that contention though defendant No.s.11 to 18 and defendant No.7 (plaintiff) did not accept the status of Combi Mariyam viz-a-viz Puthukkudi Ammad and her legal representatives' right in the suit property, her legal representatives were impleaded as additional defendant Nos.9 and 10. They died when the case was pending in the first appellate court (before remand) but no steps were taken for impleadment of their legal representatives. After the case was remanded by this Court vide judgment in S.A.No.287 of 1990, defendant No.7 (plaintiff) filed I.A. Nos.478, 479, 563 and 564 of 1996 to implead legal representatives of defendant Nos.9 and 10, to set aside abatement and condone delay in filing those applications. Those applications were resisted R.S.A. No.614 of 2004 -: 18 :- by defendant No.8 on the ground that suit against defendant Nos.9 and 10 has already abated. On the face of that objection defendant No.7 (plaintiff) filed application to delete the names of defendant Nos.9 and 10 from the array of parties stating that they are not necessary parties to the proceedings. That application was opposed by defendant No.8 but the trial court allowed that application stating that it is at the risk of defendant No.7 (plaintiff). Defendant No.8 challenged that order in C.R.P. No.2668 of 1996. This Court by order dated 17.12.1996 dismissed the C.R.P. holding that trial court allowed the application to delete the names of defendant Nos.9 ad 10 at the risk of defendant No.7 (plaintiff) and that right of defendant No.8 to challenge consequence of non-impleadment of legal representatives of defendant Nos.9 and 10 is left open. While so legal representatives of defendant Nos.9 and 10 filed I.A. No.14 of 1997 in the trial court for impleadment. That application was dismissed by the trial court against which petitioners therein filed C.R.P. No.330 of 1997. That CRP was dismissed on 18.2.1997 as withdrawn. It is in the above circumstances defendant No.8 raised a contention that consequent to non-impleadment of legal representatives the suit stands abated and is liable to be R.S.A. No.614 of 2004 -: 19 :- dismissed for non-joinder of legal representatives of defendant Nos.9 and 10 as necessary parties.

8. The above contention is raised by defendant No.8 on the premise that Combi Mariyam is the second wife of Puthukkudi Ammad under whom deceased Nos.9 and 10 claimed right, title, interest and possession. But defendant No.7 (plaintiff) or defendant Nos.11 to 18 do not admit that Combi Mariyam was the second wife of Puthukkudi Ammad. There is no reliable evidence (in this proceeding) to show that Combi Mariyam was married to Puthukkudi Ammad and hence her legal representatives inherited right in the property of Puthukkudi Ammad. In the circumstances it cannot in this proceeding be said that legal representatives of the late Combi Mariyam and defendant Nos.9 and 10 are necessary parties in this proceeding. Whether this finding will affect the right if any of the legal representatives of the late Combi Mariyam and defendant Nos.9 and 10 is another matter which is not required to be decided in this proceeding. On the evidence on record the contention that consequent to the death of defendant Nos.9 and 10 and non- impleadment of their legal representatives on time suit abated cannot be sustained. Nor can the suit be dismissed for alleged non- R.S.A. No.614 of 2004 -: 20 :- impleadment of necessary parties for the said reason. Question of law raised in this regard is answered accordingly.

9. Yet another substantial question of law framed for a decision is whether claim of defendant No.8 which was the subject matter of Ext.A8, renewal lease after 1.4.1964 is hit by Sec.74 of the KLR Act?

10. I referred to the contentions raised by defendant No.8 as to his title and possession. Defendant No.8 traced title through Vadakkedath Ammad and ultimately from defendant Nos.1 and 2. So far Ext.A8, renewal lease is concerned, trial court held that it is hit by Sec.74 of the KLR Act. The question whether that renewal lease deed is hit by Sec.74 of the KLR Act is not of any consequence so far as dispute involved is concerned since defendant No.8 has not claimed right of tenancy under defendant No.7 (plaintiff) or his predecessors-in-interest. Therefore that question is not necessary for a decision in this Second Appeal.

11. Crucial questions for decision are whether courts below were legally correct in holding in favour of title claimed by defendant No.7 (plaintiff) and that title is not lost by adverse possession and limitation. Learned Senior Advocate for defendant R.S.A. No.614 of 2004 -: 21 :- No.8 would contend that the documents produced by defendant No.7 (plaintiff) would not show that he got title or possession over the suit property in that the documents produced contain inconsistent statements and, there is no document from the side of jenmi to show that there was any lease from the jenmi, Moorchilot tarwad. It is the contention of learned Senior Advocate that Exts.A16 to A26, receipts for alleged payment of building/land tax and Exts.A32 and A33 for alleged payment of rent to the jenmi are not admissible in evidence as those documents were marked after the case was remanded to the trial court and without recalling any of the witnesses already examined or by examining any person attached to Moorchilot tarwad. Nor are the said documents marked by consent of parties. According to the learned Senior Advocate it is pertinent to note that those documents were not produced by defendant No.7 (plaintiff) at any time before remand of the case. The so called rent receipts without examining the person who is stated to have issued it cannot be admitted in evidence. Courts below went wrong in relying on those documents to prove title and possession of defendant No.7 (plaintiff). It is the further contention of the learned Senior Advocate that even if it is found that defendant R.S.A. No.614 of 2004 -: 22 :- No.7 (plaintiff) had title over the suit property it is lost by adverse possession and limitation since evidence on record would show that at least from 1965 onwards defendant No.8 has been in exclusive possession and enjoyment of the property holding it adverse to the title claimed by defendant No.7 (plaintiff). Learned Senior Advocate placed reliance on the decision in L.N.Aswathama and Another v. P.Prakash (2009 SAR (Civil) 684). Per contra it is contended by learned Senior Advocate for defendant No.7 (plaintiff) that there is sufficient evidence to show that Puthukkudi Bavachi obtained lease of the suit property under the jenmi, Moorchilot tarwad and that right was assigned to Puthukkudi Ammad as per Ext.A1 dated 21.9.1899. Subsequent derivation of title leading to Ext.B2 in favour of defendant No.7(plaintiff) is also proved in evidence. On the other hand documents produced by defendant No.8 to prove title and possession cannot be accepted even in the nature of the recitals made therein. According to the learned Senior Advocate evidence on record is sufficient to prove that defendant No.7 (plaintiff) is in possession of the suit property and at any rate even if it is assumed that he lost possession of the property plea of adverse possession and limitation having been not R.S.A. No.614 of 2004 -: 23 :- established by defendant No.8 title of defendant No.7 (plaintiff) is not extinguished. According to the learned Senior Advocate this Court while disposing of S.A. No.287 of 1990 has appointed defendant No.8 as a party Receiver for the property and his possession is for the rightful owner. Reliance is placed on the decisions in T. Krishnaswamy Chetty v. C. Thangavelu Chetty (AIR 1955 Madras 430) and P.T.Munichikkanna Reddy & Others v. Revamma and Others (2007] 6 SCC

59). Learned Senior Advocate has stated that in the light of the remand judgment of this Court in S.A. No.287 of 1990 and the directions contained therein even in the absence of a prayer for recovery of possession trial court was right in directing partition of the suit property and allotting 8/9 shares to defendant No.7 (plaintiff). But by abundant caution defendant No.7 (plaintiff) has filed I.A.No.1406 of 2006 for amendment of the plaint to incorporate a prayer for recovery of possession. It is requested that the application may be allowed in the ends of justice.

12. Initially it started as a suit for partition with defendant Nos.11 to 18 filing the suit as plaintiff Nos.1 to 6 claiming that they got 1/9 share in the suit property along with defendant Nos.1 to 6 R.S.A. No.614 of 2004 -: 24 :- claiming under Mariyam, sister of Puthukkudi Ammad. Exts.B4 and B5 show that the said Mariyam pre-deceased Puthukkudi Ammad. If that be so it is not disputed by defendant Nos.11 to 18 that they or defendant Nos.1 to 6 could not lay hands on the suit property as legal representatives of the said Mariyam. If the case of defendant No.7 (plaintiff) were to be accepted, as per Ext.B2 he got the right of Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad who alone inherited the property on the death of the latter. In Ext.B2 what is stated is that share of the said Mariyam and Avulla Haji in the suit property is assigned to defendant No.7 (plaintiff). If 8/9 shares in the suit property has to go to defendant No.7 (plaintiff), remaining 1/9 share should go, not to defendant Nos.1 to 6 or 11 to 18 whose claim is only under Mariyam, sister of Puthukkudi Ammad or to defendant No.8 who is a stranger but to Mariyam and Avulla Haji, daughter and brother of Puthukkudi Ammad and if they are not alive to their legal representatives who are not parties to the suit. Understanding this difficulty defendant No.7 (plaintiff) filed I.A. Nos.1096 and 1097 of 1985 while the case was pending in the first appellate court before remand (A.S.No.117 of 1984) for impleadment of legal representatives of daughter Mariyam and brother, Avulla Haji and for R.S.A. No.614 of 2004 -: 25 :- consequential amendment of the plaint. First appellate court dismissed those applications observing that heirs sought to be impleaded will not get any right in the property as legal representatives of Mariyam and Avulla Haji since they assigned their (full) right to defendant No.7 (plaintiff) as per Ext.B2. Defendant No.7 (plaintiff) again filed I.A.No.77 of 1990 in A.S. No.117 of 1984 to amend the plaint to incorporate a prayer for recovery of possession. That application was also dismissed by the first appellate court. The appeal also was dismissed. This Court while disposing of S.A. No.287 of 1990 did not interfere with the dismissal of I.A. Nos.1096 and 1097 of 1985 or I.A. No.77 of 1990 and instead directed the trial court that in case title of suit property was found with defendant No.7 (plaintiff) and it is found to be not lost by adverse possession and limitation to grant a decree for partition of the 8/9 shares which alone defendant No.7 (plaintiff) claimed in the suit. Thus in the light of the remand judgment of this Court and the fact that legal representatives of sister Mariyam and Avulla Haji are not on record and relief is now sought against defendant No.8 who is an utter stranger so far as Puthukkudi Ammad and the derivation of title under him are concerned question of treating the R.S.A. No.614 of 2004 -: 26 :- suit as one for partition does not arise. This proposition is not disputed by learned Senior Advocates appearing on either side as well. Therefore suit must be treated as one on title. It is for defendant No.7 (plaintiff) to prove title and possession claimed by him.

13. I shall refer to the documents relied on by the contestants. Exhibit A5 is the Adangal register produced by defendant No.7 (plaintiff) in respect of Puthukkudiparambu (referred to in the plaint schedule as comprised in R.S.Nlo.237/1, old survey number 259/1) concerning 86> cents. Pattadar is Moorchilot Mooppasthani Kunhappa @ Kunhikananaran. Exhibit A4 is the certified copy of document No.422 of 1870 executed by Othenan Kurukkal (who claimed to have tenancy and possessory right under Moorchilot tarwad) in favour of Beeyathumma. Under Ext.A14, the said Beeyathumma obtained tenancy right in respect of the suit property under Moorchilot tarwad. Next document is Ext.A13, dated 25.10.1872 executed by Beeyathumma transferring her possession and tenancy right in favour of Puthukkudi Bavachi. In Ext.A13 property is described as Puthukkudiparambu measuring 68x94 for carpenter koles (around 86 and odd cents). Then comes Ext.B1, dated 23.4.1897 executed by Puthukkudi Bavachi in favour of R.S.A. No.614 of 2004 -: 27 :- Kolankandy Avulla. Exhibit B1 states that Puthukkudi Bavachi had taken a loan from the said Kolankandy Avulla and that the latter will have right to take usufructs from the suit property measuring 26x40 for six feet koles (which is 86.80 cents). Exhibit A1 is an assignment deed dated 21.9.1899 in respect of Puthukkudiparambu measuring 26x40 for six feet koles executed by Puthukkudi Bavachi in favour of Puthukkudi Ammad as per which Puthukkudi Ammad got possession and tenancy right from Puthukkudi Bavachi. Exhibits A32 and 33 are printed receipts produced by defendant No.7 (plaintiff) to show that Puthukkudi Ammad had paid rent to the Moorchilot tarwad (Exhibits A32 and A33 are produced after remand). After death of Puthukkudi Ammad his daughter Mariyam and brother Avulla Haji executed Ext.B2, assignment deed dated 12.8.1965 in favour of defendant No.7 (plaintiff) in respect of 86> cents. Thus defendant No.7 (plaintiff) claimed to be the tenant in possession of the suit property which according to him is 86> cents. Later he obtained Ext.B3, purchase certificate in the year 1979 as per Ext.A45, order of the Land Tribunal. He has also produced Exts.A10 to 12 to show payment of revenue in respect of the said property. Defendant R.S.A. No.614 of 2004 -: 28 :- No.7 (plaintiff) as D.W1 spoke to his title and possession of the suit property. He examined P.Ws.2 and 3 to support his case.

14. Claim of title made by defendant No.8 is traced to Ext.A6, assignment deed darted 11.2.1925 executed by Kuyyandathil Moossa in favour of Vadakkedath Ammad. In Ext.A6 it is stated that not being obliged to anybody and without obligation to pay rent ("...

....") said Moossa was in possession of the property referred to therein (23x26 for six feet koles which comes to roughly 52 cents). It is the case of defendant No.8 that Vadakkedath Ammad granted oral lease in favour of defendant No.1 and her husband, Puthukkudi Anthruman. Vadakkedath Ammad transferred his intermediary right to the said Anthruman as per Ext.A7, assignment deed dated 3.3.1952 where he traced right to Ext.A6. Later Puthukkudi Anthruman granted renewal lease in favour of defendant No.1, his wife and their son, defendant No.2 as per Ext.A8, dated 12.4.1965. Defendant Nos.1 and 2 (who incidentally happened to be legal heirs of Mariyam, sister of Puthukkudi Ammad) assigned their right referred to therein to defendant No.8 as per Ext.A9 dated 5.6.1965 and later defendant No.8 got Ext.B1, R.S.A. No.614 of 2004 -: 29 :- purchase certificate from the Land Tribunal.

15. So far as the rival claim of title by defendant Nos.7 (plaintiff) and 8 is concerned courts below observed that claim of tenancy under Exts.A6 and A8 cannot stand since it is created after 1.4.1965. Courts below also referred to the evidence of defendant No.8 as D.W.3 to hold against his claim on title and possession. A further finding made by the courts below is that documents of title relied on by defendant No.7 (plaintiff) are more than 30 years old and hence those documents got protection of Section 90 of the Indian Evidence Act. But on that basis alone title of defendant No.7 (plaintiff) cannot be found since Ext.A6 relied on by defendant No.8 is dated 11.2.1925 and that document also is entitled to get protection of Sec.90 of the said Act.

16. It is pertinent to note from Exts.A6 to A9 that in these documents jenm right is not traced to anybody. On the other hand what is recited in these documents is that "without being obliged to anybody and without liability to pay rent, etc.", Kuyyandathil Moossa got possession of the property from whom there was assignment in favour of Vadakkedath Ammad. It is not stated how Moossa got possession of the property. Exhibit A5, Adangal extract shows that R.S.A. No.614 of 2004 -: 30 :- the property belonged in jenm to Moorchilot tarwad and the Pattadar was Moorchilot Mooppusthani Kunhappa @ Kunhikanaran. Exhibit A14 executed by Othenan Kurukkal in favour of Beeyathumma is of the year 1870 followed by Exts.A13 and B1 dated 25.10.1872 and 23.4.1897. Puthukkudi Ammad is stated to have obtained tenancy right as per Ext.A1 dated 21.9.1899 whereas Ext.A6, the earliest document relied on by defendant No.8 is dated 11.2.1925 i.e., after Ext.A1).

17. It is argued by learned Senior Advocate appearing for defendant No.8 that recitals as to tenancy in Exts.A13 and A14 do not tally. It is also argued by learned Senior Advocate that there is no document produced by defendant No.7 (plaintiff) to show that any lease or counter part of lease was executed by any member of Moorchilot tarwad in favour of the predecessor-in-interest of defendant No.7 (plaintiff No.7). It is true. But there is no reason to think that in Ext.A14 of 1870, Ext.A13 dated 25.10.1872, Ext.A1 dated 21.9.1899, all before Ext.A6 dated 11.2.1925 a false entry regarding executants referred to therein obtaining tenancy right under the Moorchilot tarwad should be made.

18. So far as receipts for payment of rent and revenue R.S.A. No.614 of 2004 -: 31 :- produced by defendant No.7 (plaintiff) and referred to above are concerned I stated that those documents are produced only after the remand of the case. Assuming that receipt for payment of tax for building/land could have been marked in evidence, that would not in any way confer title on defendant No.7 (plaintiff). So far as the rent receipts (Exts.A32 and A33) are concerned those documents are also produced only after the remand of the case and marked without examining anybody connected with it. I have gone through the rent receipts and those documents were not marked on consent also. Hence these documents cannot be forced upon defendant No.8 to find against him. Courts below were not correct in placing reliance on Exts.A32 and A33 produced by defendant No.7 (plaintiff) after remand of the case and which are not properly proved.

19. The suit property is described in the plaint schedule as 86 > cents while as per the documents relied on by defendant No.8 (Axts.A6 to A9) the extent (within the same boundaries) is only 52 cents. Courts below observed that defendant No.8 (D.W.3) has no case that he has title and possession of the entire suit property. There is dispute between the parties as to the extent of the property though it has within admitted boundaries. The property has not R.S.A. No.614 of 2004 -: 32 :- been measured to ascertain its actual extent. Hence courts below were not correct in holding that defendant No.8 (D.W.3) has no claim over the entire suit property. Merely for the reason that in Exts.A6 to A9 extent of the property is stated as 52 cents (23x27 for six feet koles) title cannot be found in favour of defendant No.7 (plaintiff). Defendant No.8 when examined as D.W.3 could not deny that jenm of the property was with Moorchilot tarwad. He has not gone through the documents of title relied on by defendant No.7 (plaintiff). Having regard to the documents and other evidence produced by either side and since documents produced by defendant No.7 (plaintiff) related to dates much prior to Ext.A6, first of the documents relied on by defendant No.8 and also considering the manner in which derivation of title is referred to in the respective documents I find no reason to interfere with the finding of the courts below in favour of defendant No.7 (plaintiff) as to title over the property.

20. Then what remained is whether title of defendant No.7 (plaintiff) is lost by adverse possession and limitation? Courts below found that possession of property remained with defendant No.7 (plaintiff) and that plea of adverse possession and limitation raised R.S.A. No.614 of 2004 -: 33 :- by defendant No.8 cannot be accepted. Defendant No.7 (plaintiff) as D.W.1 said that in 1965, there was dispute between him and defendant No.8 which was settled in mediation. Accordingly defendant No.7 (plaintiff) got northern half of the suit property with the house while defendant No.8 was given southern half of the suit property and parties took possession of the respective portions. As D.W.1, defendant No. 7 (plaintiff) only claimed possession of the northern half of the suit property. P.W.1 (defendant No.11 - original plaintiff No.1) also stated so. Evidence of witnesses (P.Ws.2, 3 and D.W.2) is in the same line. If this version of defendant No.7 (plaintiff) were accepted, defendant No.8 should be in possession of one half of 86> cents according to defendant No.7 (plaintiff), towards northern side i.e., about 43 cents. This is not admitted by defendant No.8 (D.W.3). He claimed exclusive possession of the entire land (52 cents according to him) lying within same boundaries. Though both sides have procured purchase certificates in their favour issued from the Land Tribunal the same cannot be taken into account as evidence of possession as it is admitted that those purchase certificates are obtained without notice to the opponent.

21. While the appeal was pending before the first appellate R.S.A. No.614 of 2004 -: 34 :- court before remand, defendant No.7 (plaintiff) filed I.A. No.77 of 1990 to incorporate a prayer for recovery of possession of the property from defendant No.8 (respondent before the first appellate court). I stated, that application was dismissed. In paragraph 14 of the judgment (A.S. No.117 of 1984) first appellate court has stated, "it is the admitted case that respondent is in possession of the property".

                     ('respondent'     referred   to  there   is

              defendant No.8)

Thus it was admitted before the first appellate court when the matter pending in that court before remand that the suit property was in the possession of defendant No.8. In this Second Appeal also an application (I.A.No.1406 of 2006) is filed for a similar relief. But the principle of res judicata should and would apply to the different stages of same proceeding and hence I.A. No.1406 of 2006 cannot be allowed as a similar application was dismissed earlier and this Court did not interfere with that dismissal. It is liable to be dismissed. I do so. It is not disputed that defendant No.8 had filed O.S. No.392 of 1960 against some of the defendants (defendant R.S.A. No.614 of 2004 -: 35 :- No.7 - plaintiff was not a party to that suit) claiming that he is in exclusive possession of the property and that defendants therein are attempting to trespass. Though trial court found that defendant No.8 is in possession of the property, it was of the view that he is only a co-owner and hence not entitled to the decree prayed for. Defendant No.8 challenged that decree and judgment in A.S. No.67 of 1974. Exhibit A3 is the copy of judgment. First appellate court held that defendant No.8 is in possession of the property and leaving the issue regarding title for decision in appropriate suit granted decree for injunction against the defendants in O.S. No.392 of 1960. The decision in O.S.No.392 of 1966 and the appellate judgment in that case though not binding on defendant No.7 (plaintiff) on the rule of res judicata is an item of evidence in favour of defendant No.8 as acceptance of a disputed fact under Section 13 of the Evidence Act. The above circumstances coupled with contention of defendant No.7 (plaintiff) about at least half of the disputed property being in the possession of defendant No.8 taken along with the evidence of P.Ws.1 to 3 and D.W.2 and the application preferred by defendant No.7 (plaintiff) for amendment of the plaint to incorporate relief of recovery of possession of the suit property from defendant No.8 R.S.A. No.614 of 2004 -: 36 :- persuades me to think that from 1965 onwards defendant No.8 has been in exclusive possession and enjoyment of the suit property.

22. Now the question is whether possession of defendant No.8 was adverse to defendant No.7 (plaintiff) to his knowledge. Admittedly O.S No.392 of 1966 filed by defendant No.8 was ordered to be tried jointly with O.S.No.329 of 1966 fled by defendant No.7 (plaintiff) for partition (which was later withdrawn as per Ext.B10, order). It is not disputed that defendant No.7 (plaintiff) was not a party in O.S. No.392 of 1966. Exhibit B7 is the copy of application filed by defendant No.7 (plaintiff) in O.S. No.660 of 1966 (suit for partition) where defendant No.8 was defendant No.11. In that application it is stated by defendant No.7 (plaintiff) that defendant No.8 (defendant No.11 in that case) has filed O.S. No.392 of 1966 claiming right and possession of the property. Thus there is evidence to show that even on 1966 defendant No.7 (plaintiff) was aware of the title and possession claimed by defendant No.8 which certainly was not under or in recognition of title of defendant No.7 (plaintiff) or his predecessor-in-interest, instead, asserting title for defendant No.8 himself to the knowledge of defendant No.7 (plaintiff). Defendant No.8 was claiming possession and enjoyment R.S.A. No.614 of 2004 -: 37 :- under a title adverse to defendant No.7 (plaintiff). It has come in evidence through D.W.2 that following property dispute between defendant No.7 (plaintiff) and defendant No.8 in the year 1965 there was a case for arson registered by the police. P.W.1 says that father of defendant No.7 (plaintiff) had preferred a compliant to the police alleging that defendant No.8 demolished the house in the suit property, police charge-sheeted the case and it is only thereafter the case (civil) case filed (in the year 1966). Thus defendant No.8 was in exclusive possession of the suit property asserting hostile title to defendant No.7 (plaintiff) to the knowledge of the latter.

23. Then the question is whether such possession of defendant No.8 at least from 1965 onwards extinguished title of defendant No.7 (plaintiff). Learned Senior Advocate appearing for defendant No.8 has invited my attention to the judgment of this Court in S.A. No.287 of 1990 where on the submission of defendant No.8 that he was under a threat of deposition by defendant No.10 and others, defendant No.8 was appointed as a party Receiver. Learned Senior Advocate placed reliance on the decision in Krishnaswamy Chetty v. Thangavelu Chetty (supra) to show the nature of possession a party Receiver has. Learned R.S.A. No.614 of 2004 -: 38 :- Senior Advocate has also relied on the decision of the Supreme Court in P.T. Munichikkanna reddy v. Revamma and Others (supra). According to learned Senior Advocate question of defendant No.8 holding property adverse to defendant No.7 (plaintiff) arose only when defendant No.8 admitted the title of defendant No.7 (plaintiff No.7). The decision in Krishnaswamy Chetty's case has no application to the facts of the case. In Munichikkanna Reddy's case the Supreme Court held that to constitute adverse possession there should be positive intention to dispossess the owner as distinguished from an intention to possess the property and that starting point of adverse possession is also important. In the present case it is adverse to the title claimed by defendant No.7 (plaintiff) that defendant No.8 got possession of the suit property. I have also referred to the dispute regarding title and possession even leading to alleged demolition of the house in the suit property and even arson in the year 1965 and defendant No.8 establishing his possession from then onwards. Learned Senior Advocate appearing for defendant No.8 relies on the decision of the Supreme Court in L.N. Aswathama & Another v. P. Prakash (supra) where it is held that when a person is in possession asserting R.S.A. No.614 of 2004 -: 39 :- to be the owner, even if he fails to establish his title his possession can still be adverse to the true owner and that the two pleas are not inconsistent but only alternative. In paragraph 18 it is held, "....This case is different, as the defendant did not contend that he entered possession under or through the plaintiffs. His case was that he was in possession as a tenant under Gowramma from 1962 and he became the owner by purchasing the plot from Gowramma in 1985. He alternatively contended that if Gowramma did not have title and consequently his claim based on title was rejected, then having regard to the fact that he had been in possession by setting up title in Gowrmama and later himself his possession was hostile to the true owner; and if he was able to make out such hostile possession continued for more than 12 years, he could claim to have perfected his title by adverse possession. There is considerable force in the contention of defendant provided he is able to establish adverse possession for more than 12 years. When a person is in possession asserting to be the owner, even if he fails to R.S.A. No.614 of 2004 -: 40 :- establish his title, his possession would still be adverse to the true owner. Therefore, the two pleas put forth by the defendant in this case are not inconsistent pleas but alternative pleas available on the same facts. Therefore, the contention of plaintiffs that plea of adverse possession is not available to defendant is rejected"

In this case that from 1965 onwards defendant No.8 is in exclusive possession of the suit property is proved and indisputably, it was not claiming under defendant No.7 (plaintiff) or his predecessor in interest or acknowledging their title. Exhibits A6 to A9 show that defendant No.8 and his predecessor-in-interest were not acknowledging even the jenm right of Moorchilot tarwad and instead claimed to be in possession and enjoyment "being obliged to none and without any liability to pay rent etc." Thus there is evidence to show that it is asserting hostile title against defendant No.7 (plaintiff), his predecessor-in-interest and to their knowledge that defendant No.8 is in possession and enjoyment of the property. If that be so, the suit filed in the year 1979 is beyond the statutory period of period of 12 years by which time defendant No.8 has R.S.A. No.614 of 2004 -: 41 :- perfected title by adverse possession and limitation extinguishing title of defendant No.7 (plaintiff) by virtue of Section 27 of the Limitation Act. Defendant No.7 (plaintiff) in the circumstances is not entitled to the reliefs prayed for.

24. Substantial questions of law framed are answered as above.

Resultantly, Second Appeal succeeds. Judgment and decree of the courts below are set aside and the suit will stand dismissed. In the facts and circumstances parties are directed to suffer their respective costs.

Interlocutory Application No.1065 of 2004 shall stand dismissed.

THOMAS P.JOSEPH, JUDGE.

vsv

Unlock Advanced Research with PRISMAI

Kerala High Court