Gopalan vs Sanku Panikkar and Others

Sankaran, J.—Defendant 5 is the Appellant. The Plaintiffs'' suit is for recovery of the plaint property on the strength of title. According to them, Defendant 1 had been permitted to put up a building in the property and to reside in the property. Defendant l and the members of his family are stated to be residing in the plaint property under such a permissive right. To evict these Defendants from the property and to recover possession of the same with arrears and future rent, the Plaintiffs'' predecessor-in-interest had instituted a suit in the year 1106 in the Ernakulam Munsiffs Court as O. S. NO. 329. Even though the rent arrangement pleaded in that suit was found to be false and the claim for rent was disallowed, Plaintiff was given a decree for recovery of possession of the property on payment of the value of the improvements in the property which were found to belong to the Defendants. The trial Court''s decree to that effect was passed on 19-3-1107 and it was confirmed by the appellate Court, subject to a slight modification in the value of improvements. The appellate Court decree was passed on 29-12-1109. The value of improvements awarded under that decree was Rs. 536-ll.l. The Plaintiff did not execute that decree, but allowed it to become time-barred. The present suit was instituted on 29-12-1121. After setting up the Plaintiffs'' title to the property, it was alleged in the plaint that the Defendants forcibly took possession of five cocoanut trees in the property which were in the possession and enjoyment of the Plaintiffs'' family at the time of the earlier suit. By way of income from these trees, the Plaintiffs claimed as 7-8-0 per year. Over and above this amount, a sum of Rs. 3 per year was also claimed towards charges for use and occupation of the site by the Defendants. The amount paid by the Plaintiffs by way of michavaram to the Trippoonithura Devaswom which is the ultimate jenmi of the property, was also claimed by the Plaintiffs. These amounts were sought to be set off against the value of improvements admitted to be due to the Defendants.

Defendants 4 and 5 contested the suit. They denied the permissive arrangement pleaded by the Plaintiffs and contended that the present suit is barred by res judicata by reason of the decision in the earlier suit, O. S. No. 229 of 1106. A plea of limitation was also raised by them. The trial Court repelled all these contentions and passed a decree in favour of the Plaintiffs for recovery of possession of the property from the Defendants on payment of Rs. 538-11-1, as value of their improvements in the property. The allegation that the Defendants took forcible possession of five cocoanut trees, was found against the Plaintiffs and the claim for the in come of those trees was disallowed. The claim for the charges for use and occupation of the property was fixed at Rs. 1-8-0 per year. That decree was confirmed by the lower appellate Court. Hence this second appeal.

The two points urged on behalf of the Appellant are: (l) that the suit is barred by limitation and (a) that it is barred by res judicate by reason of the decision in the earlier suit O. S. 229 of 1106. We think that the Appellant is entitled to succeed on both these points.

The question whether the decision in the earlier suit O. S. 229 of 1106, operates as a bar against the present suit, may first be considered. Exhibit l is copy of the plaint in 0. S. 229 of 1106 and Ex II, is copy of the judgment of the trial Court in that case. The copy of the appellate Court judgment in that case has been produced and marked as Ex. C. It is seen from Ex. I that. the claim in that suit was put forward on the basis that the property belonged to the Plaintiff and that the defendants were residing in the property on the basis of a kooiitharth or rent deed alleged to have been executed by Defendant 1 on 8-1 1099. That rent deed had been produced as Ex A in that case. The arrears of rent as well as future rent; had been claimed on the basis of that rent deed. It is seen from Exs. ll and c that both the trial Court as well as the appellate Court found Ex. A in that case to be a spurious document and that the lease arrangement set up by the Plaintiff was false. Accordingly the Plaintiff''s claim for arrears of rent as well as future rent, was completely negatived. If EX. I, suit bad commenced and ended as a pure and simple lease suit, the decision in that suit would certainly have not stool in the way of the Plaintiff briuging a second suit within the period of limitation for recovery of possession of the property on the strength of title. But from the pleadings of the parties and from the decision in the suit as disclosed by Exs. I, II and c, it is clear that the question of the plaintiffs'' title to the property was considered and adjudicated by the Court in passing a decree for eviction in favour of the Plaintiff in that case. Even though the question of such title had not to be tried as a specific issue in that case, it is clear from Exs. I and II, that the Plaintiff had claimed himself to be the owner of the property and that such claim of title was conceded by the contesting Defendants. It was after asserting the Plaintiffs'' title to the property that it was alleged in Ex. I that Defendant 1 was permitted to occupy the property on the strength of the alleged rent deed dated 8-1-1099. Since the written statement filed by the Defendants in that suit has not been produced in the present case, it is not possible to read in the Defendants" own words how they met the case which the Plaintiff had set up. But a translation of their contention in the written statement is contained in para. 2 of the trial Court''s judgment, Ex. II. That paragraph runs as follows:

"Defendants land 2 contend that the plaint kochcharth is not true, that there was no agreement to pay any rent, that they have reclaimed the property and built a house and have effected improvements, that they are entitled "to get value for these, that the amount due for value of improvements is payable to Defendant 2, that the properties have been mortgaged to Thottakkat Kochupilla Menon, that after paying the mortgagee, the balance of the value of Improvements may be paid to Defendant 2, that there are 20 cocoanut trees, five saplings, 27 arecanut trees, one jaotree sapling, one mango tree, bamboos and other trees belonging to the Defendants, that they are entitled to get value for the trees and other improvements and that the Plaintiff is not entitled to the set of claimed by him."

From the contentions extracted above, it is clear that the Defendants had in unequivocal terms denied not only the rental arrangement pleaded by the Plaintiff, but also any permissive enjoyment of the property by them under the Plaintiff. They claimed that they had rest aimed the entire property and had built a house thereon and had effected considerable improvements by planting the several trees specified above. All the same they did not contend that they had perfected their title to the property and accordingly they agreed to surrender possession of the property on receipt of the value of their improvements. There can be no doubt that when they confined their claim to such value of improvements alone they had in effect conceded that the title to the property still vested in the Plaintiff and that they were prepared to surrender possession of the property on receipt of the value of their improvements due to them. The decree passed under Ex. II and Ex. a was evidently based on such an admission of title in favour of the Plaintiff by the contesting Defendants. Otherwise the suit could only have been dismissed when the lease arrangement set up by the Plaintiff was found to be false and it was held that no rent could be claimed from the Defendants. The Plaintiff alone preferred an appeal against that decree. But it is seen from Ex. c judgment of the appellate Court that the appeal was confined to the findings against the genuineness of the rent deed and against the amount awarded as value of improvements. The decree directing recovery of possession of the property, was not and could not be made the subject-matter of that appeal because that was a consent decree based on the agreement of the parties. By Kx. c decision all that was done by the appellate Court was only to make a slight alteration in the amount awarded towards improvements. Thus it is dear that in Em. I suit the Plaintiff''s title to the property was in effect adjudicated. No doubt such an adjudication proceeded on the basis of the Defendant a admission that the Plaintiff had title to the property. Even such an adjudication based on an admission of Defendants would bar a subsequent suit between the same parties or their representatives on the same question regarding title to the identical property. This is clear from Expln. III to Section 9, Cochin Code of Civil Procedure, which lays down the rule of res judicata. The Explanation states that:

"the matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly by the other."

In Ex. I suit the Plaintiff had alleged that he was the owner of the suit property. The contesting Defendants admitted that the Plaintiff had a subsisting title to the property. On the strength of such admission, the Court adjudicated the question of title and passed a decree in favour of the Plaintiff for recovery of possession of the property. In the face of such a decree passed in that case, the Plaintiff cannot reagitate the same question as against the same Defendant. He is clearly barred by the rule of res judicata. His remedy was to execute the decree in Ex. I case and to get the necessary relief. The decree-holder and those claiming under him have only to blame themselves for having allowed that decree to become barred by limitation.

The next question is whether the present suit is within time. The Plaintiffs have sought for a declaration of their title to the property and for recovery of the same from the Defendants. From the averments in the plaint and from the findings in Exs. II and 0, it is abundantly clear that the Plaintiffs have been out of possession of the property long prior to the institution of Ex. I suit. No doubt an allegation of the Defendants having taken forcible possession of five cocoanut trees after the decree in Ex. I case had become barred by limitation, was made in the plaint in the present case. But the Plaintiffs did not make any attempt to prove and substantiate that allegation by adducing any reliable and independent evidence. Both the lower Courts have also concurrently found that ttif''1 is no basis or truth in the allegation of the Defendants having taken forcible possession of five cocoanut trees. In Ex. I it was conoeded that at least from the year 1099 the Defendants were in occupation of the property. It is settled law that in a suit for eviction based on title, the Plaintiff has to prove a subsisting title to the property. He has not only to prove his title but has also to make out that he bad possession within 12 years prior to the date of the suit. No doubt such possession may be direct or constructive. As already stated, in the present case there is no evidence of any direct possession of the property by the Plaintiffs at any time with, in 12 years prior to the date of the suit. It is clear from Exs. I, II and c that the Plaintiffs have been out of possession of the property for over 20 years on the date of the suit even if the Defendants possession is calculated from the year 1099, the date as admitted in lis. I when the Defendants began to occupy the property. The next aspect to be considered is whether the Plaintiffs can be said to have been at least in constructive possession of the property. Such a constructive possession can be found in favour of the Plaintiffs only if the Defendants are found to have been in possession of the property as tenants under the Plaintiffs or under any kind of permissive arrangement. The specific lease arrangement which the Plaintiffs'' predecessor had set up in EX. I suit, was found to be false. It may be mentioned in this connection that at that stage the Plaintiff had no case that the Defendants were in possession of the property under any other permissive arrangement. It was argued on behalf of the Respondents-Plaintiffs that in spite of the decision in Ex. I case, the Defendants must be deemed to be tenants in possession of the property under the Plaintiffs. In fact both the lower Courts have accepted this position, and it was on the strength of such a finding in favour of the Plaintiffs that the plea of limitation raised by the Defendants was negatived. In the first place, it has to be stated that there is no scop for finding such a continuing tenancy in favour of the Plaintiffs in view of the contentions which had been raised by the Defendants in Ex. I case and which were upheld. Their contentions as extracted in Ex. II judgment clearly indicate that they totally repudiated any kind of permissive enjoyment of the property under the Plaintiffs. On the other hand f their contentions were to the effect that Defendant 1 had trespassed upon the property and bad effected all kinds of improvements as if the property belonged to himself. It is also clear from EXS. Ill to VII produced in this case that Defendant l and those claiming under him were dealing with all those improvements as absolutely belonging to them. Such dealings were during the period,from 1100 to 1107.

The lower Courts have relied on Section 4, Cochin Tenancy Act, Act (xv [15] of 1113.) in support of the findings that the Defendants must be deemed to be tenants continuing to be in possession of the property under the Plaintiffs. Clause. (1) of that section lays down that every tenant on eviction shall be entitled to compensation for improvements made by him and that be is entitled to remain in possession of the property until such value of improvements is paid to him. Clause (2) lays down that a tenant continuing in possession shall during such continuance hold subject to the terms of kanom, lease or mortgage, if any. These provision can apply to the facts of the present case only if the Defendants are proved to be tenants as defined in the Tendency Act. There is no allegation of proof that the Defendants are holding the property under any kanom, lease mortgage. It has next to be seen whether the possession of those Defendants would otherwise fit in with the definition of a ''tenant'' as given in the act. In Section 2 of the Act a tenant is defined as follows:

Tenant'', with its grammatical variations and cognate expressions, includes a person who, as kanom-tenant, lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be kanomtenant, lessee, sub-lessee, mortgagee or sub-mortgagee of land is in possession there of or who, with the bona fide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let waste land, but without the permison of such person, brings such land under cultivation and is In occupation thereof as cultivator.

The position of the Defendants in this case cannot; coma even under the latter portion of the definition. The Defendant cannot be said to be persons in possession of the property with the bona fide intention of attorning and paying a reasonable rent to any person claiming to be the owner of the property. In fact oven in Ex. I suit it was expressly made clear by the Defendants that they were not paying any rent or other dues and that they had no intention of making any such payments to the owner of the property. Thus it is clear that the contesting Defendants cannot be said to be tenants in respect of the property in this case. Thus the defendants'' possession commenced as possession by trespassers and it continued as such and hence it cannot be said that the Plaintiffs had at least constructive possession of the property at any time after the discontinuance of their possession, Since they were out of possession of the property for more than 12 years prior to the date of the suit, the present suit for eviction, which is governed by Article 131, Cochin Limitation Act, is clearly barred and we hold accordingly.''

On the strength of Ex. 0. decision, it is contended on behalf of the respondent-plaintiff s that the Plaintiffs had a subsisting title, to the property on the date of the suit. This argument proceed on the basis that the Plaintiffs'' title to the property was declared by Ex. 0 decision and that the present suit is just on the date of the completion of the 12th year from the date of Ex. c. No doubt by a decree declaring title in favour of the Plaintiffs any adverse possession which the Defendants had must be deemed to have been interrupted and as such a suit based on title within 12 years from the date of such declaration must be taken to be within time, But in the present case the declaration of title in favour of the Plaintiffs was not by the decision in Ex. c. judgment, but by the decision in Ex. II judgment of the trial Court. As already pointed out, the question of title declared in favour of the Plaintiff as per Ex. II decision, was not and had not been agitated in the appellate Court. Only the other questions raised in the case were taken up in appsal and were considered and decided by Ex. c judgment of the appellate Court. Thus it cannot, be said that the title declared in favour of the Plaintiff in the earlier case must be taken to be in force with effect from the data of Ex c judgment. It is only in the matter of computing the period of limitation for executing the decree that the date of the final decree will be taken as the starting point of limitation. But So far as matters which were declared by the first Court''s decree and which did not form the subject-matter of any appeal against that decree are concerned, it cannot be, said that such declaration comes into force only from the date of the appellate Court''s decree. Thus we hold that Ex. c. decision could not be availed of by the Plaintiffs to make out that they bad a subsisting title to the property on the date of the present suit. The title declared in favour of the Plaintiffs as per Ex. II decision of the trial Court, was not sought to be enforced by them within 12 years from that date and they had been out of possession of the property for more than that period when the present suit was instituted. In this view of, the matter also, the present suit is oat of time.

In the result this second appeal is allowed and in reversal of the decree of the lower Courts the Plaintiff''s suit is dismissed with costs throughout.