Jayakumar vs Madhavan Gourikutty

Sathish Ninan, J

The concurrent decree in a suit for declaration that Exts.A1 to A3 documents are void, and for recovery of possession on the strength of title, is under challenge by the 17th defendant.

The plaint schedule property is 1½ cents. It is the property that is described in C schedule item No.12 to Ext.A4 Partition Deed of the year 1950.

One Ayyappan Madhavan and his wife, Kochammini, had nine children. The plaintiffs (5 in number) and the 1st defendant are six among them. One of the sons, Viswanathan, died and his legal heirs are defendants 2 to 6. Defendants 7 to 10 are the legal heirs of another son, Sadasiva Panicker. Defendants 11 to 15 are the legal heirs of yet another son, Balasundaram. Defendants 16 and 17 are the assignees of the plaint schedule property from Sadasiva Panicker.

On 12.04.1950, Ext.A4 Partition Deed was executed between Ayyappan Madhavan, his wife-Kochammini and all the nine children. Item No.12 in Ext.A4 partition contained three schedules and they were kept in common; A schedule was a Kalari, B schedule is a family temple and C schedule is the present plaint schedule property. The income from the plaint schedule was to be utilised for the conduct of pooja in the temple. During the lifetime of the parents, they were to collect income from the property and use it for the temple. After their death, the eldest member was obliged to do the same.

On 04.01.1978, after the death of Ayyappan, Kochammini executed Ext.A1 Sale Deed purporting to convey her rights over the C schedule to Sadasiva Panicker. On 30.01.1990, Sadasiva Panicker executed Ext.A2 Sale Deed conveying the property to the 16th defendant. The suit was then filed to declare Exts.A1 and A2 to be void and for recovery on the strength of title. The suit happened to be dismissed for default. The suit was later restored back to file. However, in between, the 16th defendant conveyed the property to the 17th defendant under Ext.A3 Sale Deed dated 07.10.1995. The plaint was amended incorporating the challenge against Ext.A3 also.

The 17th defendant alone filed written statement. The conveyances, Exts.A1 to A3, were sought to be justified. It was also pleaded that the rights of the plaintiffs have been lost by adverse possession and limitation.

The trial court held that Exts.A1 to A3 assignments are void. However, the trial court upheld the plea of adverse possession and thus, dismissed the suit. On appeal by the plaintiffs, the First Appellate Court affirmed the finding of the trial court that Exts.A1 to A3 documents are void. The finding on adverse possession was set aside and the suit was decreed.

I have heard the learned counsel on both sides on the following substantial questions of law;

i) Is the suit barred by limitation?

ii) Were the courts rights in having negatived the plea of adverse possession?

iii) As co-owners, are the parties or any of them entitled to assign their rights over the plaint schedule property, and do they have an assignable interest?

iv) Is the suit bad for non-joinder of necessary parties?

Being a suit for declaration that Exts.A1 to A3 are void, in terms of Article 58 of the Limitation Act, the suit ought to have been filed within three years from the date of accrual of cause of action. The evidence on record indicates that the husband of the 1st plaintiff was a witness to Ext.A1 assignment. Hence, it cannot be comprehended that the plaintiffs were unaware of the assignments. Therefore, the suit which is filed only on 20.01.1993, is barred by limitation, it is contended.

The suit is not one for a mere declaration. The suit is one for recovery of possession on the strength of the plaintiffs' title on finding that Exts.A1 to A3 documents are void. Article 58 applies only in the case of a suit for mere declaration. The relief being one for recovery of possession on the strength of title, it is the main and larger relief. So also, the plaintiffs were not signatories to any of the documents – Exts.A1 to A3. In the circumstances, the contention of the appellant that Article 58 is attracted and that the suit is barred by limitation, is without substance. Substantial question of law No.1 is answered accordingly.

Coming to the plea of adverse possession, the first appellate court has, on appreciating the evidence, rightly declined the plea. It is not attempted to be demonstrated before me that the finding of the Appellate Court negativing the plea of adverse possession is erroneous. So also, the defendant who pleaded adverse possession, traces title to assignments from one of the owners. After having claimed title on the strength of assignments, it is not open for the defendant to raise a mutually destructive plea of adverse possession. The finding on adverse possession warrants no interference. So also, the plea of adverse possession is a mixed question of law and facts and it is not a pure question of law much less a substantial question of law. Unless there is perverse appreciation of evidence, a finding on the said plea would not constitute a substantial question of law. As noticed, it could not be established before me that there has been any perverse appreciation of evidence on the said plea.

The learned counsel for the appellant would argue that, the parties are co-owners and that, the assignee from one of the co-owners stands in the shoes of the assigner co-owner and that, one co-owner is not entitled to seek for recovery of possession from the other co-owner. Therefore, the suit for recovery of possession could not be maintained, it is argued. The argument of the appellant is misconceived. The relevant recital in Ext.A4 partition deed reads thus;

"പ  ത വൽ വചരക ന  ന ണ   നമർ എ ബ  ടകവസ  കളപ യ   മ¬പട നമർ സ  ടകസ പ$യ   അന ഭവങള   ഒന   രണ   മ ര ക ർ ¬രണ വപര എട $  ആ ആദ യ പക ണ, കളരയപ യ   മക വ പ യ   വളയ,ക വയ. /ജ ¬ ത  യത, നട$യ   ആ വസ  കള പട കര  പക ട $   നടന പക ള നത   ഒന   രണ   മ ര ക ര പട ക  മ2ഷ  ¬/പ ¬ റ അന സരച ള ആൾ ആദ യപ¬ട $, നത6¬ ള വളക വയ,പ   - സ മത റ   ഉള  /ജകള   ആണ മത റ  ഇടവ  19 കളൽ /ജയ  നടമ$ണത  ച ¬ത ക ർനട$ പത വ:ഴവര< $യ ൽ അയ ളപന ഒഴച, ബ ക മ¬ജർആയ മ ര ക രൽ ഭ/ര ക  മ ർ മചർന, തരപ?ട ക ന ഇതപ  ഒര  അ ഗ  ഏപBട ത, നർവഘ,ന നടമ$ണത  ആക ന.”

It is evident that, in respect of the property, a Trust has been created with the executants as the trustees. The senior most member is to be the Managing Trustee. The parties cannot treat it as co-ownership properties and attempt to deal with the same according to their liking. Therefore, the contention based on co-ownership does not arise.

It is next contended that, if the parties consider the property to have been dedicated to an idol, then the idol is a necessary party. The suit is bad for non-joinder of necessary parties, it is urged. So also, it is for the idol to sue and not the plaintiff, it is contended. Noticeably, no plea of non-joinder was raised at the trial stage. Order I Rule 13 of the Code of Civil Procedure stipulates that, objections to non-joinder shall be taken at the earlier possible opportunity and in all cases where issues are settled, at or before such settlement. Objections not so taken are deemed to be waived. Therefore, the present contention must be deemed to have been waived. Even otherwise, under Ext.A4 partition, there is no dedication of the plaint schedule to the deity. The trustees through their Managing Trustee is to take the income and utilise it for the rituals in the temple. Even assuming that the property has been dedicated to the idol, the trustees who are to manage the property, are entitled to take appropriate action for the protection of the property. Thus, viewed in any manner, the objection of the appellant has no force.

Before this Court, the appellant has filed I.A.No.3 of 2023 under Order XLI Rule 27, seeking to produce additional documents in evidence. The documents are sought to be produced to show that, regarding another item of the common property, be it the temple or the Kalari, a document has been executed purporting to alienate the same. I do not think that the said document is relevant for the adjudication of the present lis. If there has been any such alienation, it is for the parties to take appropriate steps. Such illegality if any, will not legitimize the illegal alienation of the present plaint schedule property.

The substantial questions of law are thus answered against the appellants. The decree and judgment of the appellate court warrants no interference.

The appeal fails and is dismissed. No cost.