Laila Rasheed vs Nixon Xavior

A. Badharudeen, J

This regular second appeal has been filed under Section 100 read with Order XLII Rule 1 of the Code of Civil Procedure, challenging the decree and judgment dated 25.08.2023 in A.S.No.34/2016 on the files of the Additional District Court-VIII, Ernakulam, arose out of the decree and judgment dated 11.11.2015 in O.S.No.127/2008 on the files of the Sub Court, Kochi. The appellants are the legal heirs of the original plaintiff, A.Abdul Rasheed. Respondents are the defendants in the suit.

Heard the learned counsel for the appellants on admission. Perused copy of plaint and copies of relevant exhibits placed by the learned counsel for the appellants.

I shall refer the parties in this regular second appeal as 'plaintiff' and 'defendants' for convenience.

The original plaintiff, A.Abdul Rasheed, filed suit seeking a declaration that he perfected title by prescription of the plaint schedule property by virtue of adverse possession and limitation and also for prohibitory injunction restraining the defendants and their men and agents from forcefully dispossessing the plaintiffs from the plaint schedule property. The plaint averments in paragraph Nos.1 to 5 are extracted hereunder:

“1. Deceased P.B.Robert was the owner of the plaint schedule properties having acquired the same as per Sale Deed No. 62/1950 of SRO, Kochi. The said P.B.Robert died intestate. To the knowledge of the Plaintiff, Defendant No.1 who is the legal heir of deceased P.B.Robert obtained the plaint schedule properties after the death of the said P.B.Robert on 21-01-1957.

On 12-04-1984, a portion of the building in the plaint schedule property fell down. The Plaintiff thereupon entered the plaint schedule property, assumed possession thereof without consent or intervention from anyone else including the real owner. The Plaintiff soon reconstructed the said building and the same was numbered as 1/199, 1/200 and later it is numbered as 1/431 and 1/432. The Defendant had prompt notice of such wrongful entry and unlawful possession assumed by the plaintiff. However, at all material times such overt conduct on the part of the plaintiff both in the matter of the entry as also the possession assumed besides the constructions carried out went un-protested by anyone whomsoever including in particular the real owner. After construction as aforesaid, the Plaintiff setup his residence in the upstair portion of the building. He also started a business in the shop room in the ground floor. Later, the Plaintiff created a mortgage in respect of a portion of the building to various persons viz. Subaida, K.G.Francis, Norman Roberraw, Lilly Ludwick and C.D.Xavier etc. during successive periods viz. 1989,1990,1998 and 2000. As submitted above, all these facts were well known to the defendants. But they neglected and failed to take any action against the Plaintiff to recover possession of the plaint schedule property from the Plaintiff.

In the year 1991, the legal heirs of deceased P.B.Robert secretly created a Partition Deed registered as Document No.3049/1991 of SRO, Kuthiathode concerning division of properties of late Robert. Schedule A there under was set apart for the 1st defendant. The plaint schedule property constituted item no. 4 in Schedule A. While describing the plaint schedule property in the said Partition Deed some apparent errors have crept in concerning the extent, Sub-Division No. and desom as that of Sale Deed No. 62/1950. It appears that Defendants 2 and 3 purportedly purchased the plaint schedule property subsequently.

It is respectfully submitted that the plaint schedule properties has been in the continuous and uninterrupted possession of the plaintiff ever since 12-4-1984. Such possession of the plaintiff was open, public and peaceful to the exclusion of the real owner. Such possession was hostile and adverse to that of the real owner. By virtue of the long possession and enjoyment in the manner aforesaid, the Plaintiff perfected his title to the property. Applying the principles of adverse possession and limitation, the plaintiff has become vested with absolute ownership over the plaint schedule property.

The plaintiff humbly submits that in January 1992 the 1 st defendant approached the Plaintiff with request to surrender vacant possession of the plaint schedule property. The request was then and there openly defied by the Plaintiff. The 1st Defendant did not budge an inch to initiate any legal steps to recover possession of the property even at that point of time. While so, in due course of time, Defendant Nos: 1 to 3 fully conscious of the factum of possession remaining with the plaintiff, created several conveyances viz. Sale Deed No. 1862/1998 of SRO, Kuthiathode in favour of one D.X.Sebastian, who is now no more and Sale Deed No. 5611/2005 and Rectification Deed No. 5816/2005 of SRO, Kochi in favour of one Nixon Xavier, a relative of the 1st defendant purportedly transferring an extent of 5 cents and the building thereon forming part of the plaint schedule property. As a matter of fact, the actual extent of the plaint schedule property is 5.830 cents where there is a two storied building. It was an attempt to mislead the authorities to suppress the factum of the possession of the property vested with the plaintiff. Yet another attempt was made by the 1st Defendant in the year 2006 by purportedly creating a conveyance in favour of the 3rd Defendant as per Sale Deed No. 5868/2008 of SRO, Kochi. The 3rd Defendant thereafter changed the assessment of the building in the records of the Corporation of Cochin in his name and made remittance of property tax concerning the building. However till date mutation of the land or any part of the plaint schedule property has not been carried out and it still remains in the name of late P.B.Robert.”

Apart from the pleadings in paragraph Nos.1 to 5, the specific case of the plaintiff, in tune with the averments in paragraph Nos.1 to 5, is that he has perfected title by adverse possession over the plaint schedule property. The first defendant did not appear on summons and he was set ex parte. The 2nd defendant filed written statement contending that building No.CC1/431 is owned by the 1st defendant and the plaintiff is only a tenant. In the year 1980, the plaintiff purchased building No.1/1659 and 1/1660 adjacent to house No.1/1658, in which he is residing permanently, in the name of his wife, and he is continuing in the said address. The 2nd defendant purchased the plaint schedule property on 07.02.2005 from D.X.Sebastian as per sale deed No.5816/2005 and he is the owner of the property. He effected mutation and has been paying basic tax and property tax. The 2nd defendant sold the property to the 3rd defendant on 04.12.2006 as per sale deed No.5858/2006. The sale was intimated to the tenant. The extent of the plaint schedule property is wrongly mentioned in the plaint. The same was only 5 cents as per the village records. After the death of P.B.Robert on 21.01.1957, his large extent of properties at different places, including the plaint schedule property, devolved upon his wife and children. He was survived by his wife, Annakutty Robert and 3 children, viz., Archibold Robert, Abel Antony Robert and Sebastian Robert. The permanent address of the plaintiff is 1/1658 at Kunnumpuram. He had purchased the adjacent buildings in the year 1980. The plaintiff never created any mortgage in respect of the property. The allegation that the legal heirs of the late Robert created partition deed secretly in 1991 was denied. The first defendant obtained ownership of the property in 1991 as per the partition deed. The claim that the plaintiff is in uninterrupted possession of the property from 1984 and he had perfected his title over the same by adverse possession and limitation were denied. The claim that the 1st defendant demanded vacant possession in 1992 also was not correct. The plaintiff was put in possession of the property as a tenant in 1990. It was contended further that the plaintiff is only a tenant in the building and he is not entitled to any declaration or injunction against the true owner.

The trial court recorded evidence. PW1 to PW5 examined and Exts.A1 to A78 were marked on the side of the plaintiffs. DW1 to D6 were marked on the side of the defendants. Exts.B1 and B53 were marked on the side of the defendants. Ext.C1, C1(a) and C2 and Exts.X1 to X5 were also marked.

Thereafter, the trial court negatived the claim for adverse possession on multiple grounds after discussing the evidence in detail. Relevant portion of paragraph No.31 of the trial court is as under:

“On perusal of Ext.B33 partition deed it is seen that it is specifically mentioned in that partition deed that the property covered by Ext.B26 sale deed in favour of P.B.Robert which is the plaint scheduled property herein was also included for partition and that property "allotted to Archibold Robert and in the document executed in favour of Sebastian it is specifically. mentioned that Archibold Robert has sold the property obtained by him as per the Ext.B37 partition deed and devolved upon him by intestate succession after the death of P.B.Robert and Sebastian has sold said property to Nixon Xavier. Later Nixon Xavier has sold the property to one P.K.Kunjumon, the 3rd defendant by correcting the survey Number as 67/10 after obtaining a certificate from the Village Officer stating that the correct survey number of the property belonged to P.B.Robert as per Ext.B26 is 67/10 and not 67/1 and on the basis of that certificate Nixon Xavier has sold the property obtained by him as per the sale deed in his favour executed by Sebastian. Even though a mistake in the survey number has been crept in the schedule of the property partitioned as per Ext.B33 partition deed, from the recitals in Ext.B33 it is seen that the plaint schedule property obtained from P.B.Robert has been allotted to Archibold Robert and he had sold the said property to Sebastian and thereafter, Sebastian sold the same to Nixon Xavier. So all those records would reveal that the plaint schedule property belonged to P.B.Robert has been transferred to Archibold Robert and thereafter to the defendants 2 and 3 and hence they have got right and title to the said property. Hence issue No.8 is found accordingly.”

Accordingly, the suit was dismissed. On appeal, the learned additional District Judge also confirmed the said finding.

I have perused the copy of plaint with reference to paragraph Nos.4 and 5 as extracted hereinabove. A conjoint reading of paragraph Nos.4 and 5 would depict that the plaintiff asserts possession with effect from 12.04.1984. At the same time, the case of the plaintiff is that in January, 1992, the 1st defendant approached the plaintiff with a request to surrender vacant possession of the plaint schedule property and the said request was then and there openly defied by the plaintiff. Thus, going by the admitted case of the plaintiff in paragraph Nos.4 and 5 of the plaint, it is evident that before completing 12 years period necessary to perfect title by adverse possession, with 'hostile animus' as mandated under Article 65 of the Limitation Act, during 1992 i.e., 8 years after 12.04.1984, the 1st defendant approached the plaintiff and requested to surrender the vacant possession of the building. If so the admission of the plaintiff in the plaint itself shows intervention of the owner, during possession of the plaint schedule property before 12 years and the same itself would defeat plea of adverse possession.

The essentials to perfect title by adverse possession are well settled. In the decision in Raghavan v. Devayani reported in 2024 KHC Online 192, in paragraph No.12, it was held as under:

“12. When addressing the requirements of adverse possession, the classical requirements of adverse possession are; nec vi, nec clam and nec precario, that it should be peaceful, open and continuous. (1) nec vi means neither by force. If the rightful owner of the property is constantly visiting the property, trying to get back possession, but the adverse possessor is throwing him out and is maintaining his wrongful possession by force, then his adverse possession does not begin.

(2) nec clam means neither secretly. If the possession of the wrongful occupier is a guarded secret, and the legal owner cannot be reasonably expected to know of the fact of the loss of possession to the wrongful occupier, then also adverse possession does not begin.

(3) nec precario means neither licence or permission. Since the concept of adverse possession is nec vi nec clam nec precario, there must in the first instance be actual possession and secondly there must be open hostile animus; possession required must be adequate in continuity, in publicity and in extent to show that his possession is adverse to the competitor. It is the intention to claim adversely accompanied by such an invasion of the rights of the opposite party as gives him a cause of action which constitutes adverse possession. Consonant with this principle the commencement of adverse possession in favour of a person, implies that that person is in actual possession, at the time with a notorious hostile claim of exclusive title, to repal which, the true owner would then be in a position to maintain an action. It would follow 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 requisite animus. The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It must be actual, visible, exclusive, hostile and continued for over the statutory period. The hostile character of the possession is gauged by the animus of the person setting up adverse possession. The question of animus is a question of personal equation of the prescriber and not that of the person whose title is sought to be acquired. Thus, where a person was found to be in possession on behalf of another, notwithstanding that the latter admitted the farmer's possession to be on his own account, it could be held that the former's possession was only on the latter's behalf and not adverse to him. The animus of the prescriber alone determines the nature and quantum of the estate that is being prescribed. Adverse possession depends on intention of the occupant to claim and hold the land in opposition to the whole world and also embodies the idea that the owner or persons interested in the property have knowledge of the assertion of ownership by the occupant. Adverse possession consists of actual possession with intent to hold solely by the possessor to the exclusion of all others.”

The trial court as well as the appellate court also extracted many decisions highlighting the essentials to perfect title by adverse possession. In this case, the appellate court relied on the evidence of PW1, asserting that he had entered the property in the year 1984 with reference to Ext.B10 building tax assessment register of the year 1979-1984. The appellate court found that in Ext.B10, the name of the tenant is shown as 'A.J.Antony'. Similarly, Ext.B13 land tax receipt issued in the name of the 3rd defendant also was relied on. The appellate court also given emphasis to the evidence of PW2, the Village Officer, Fort Kochi, who produced Exts.X1 and X2 documents. Ext.X1 is the document containing details of property having an extent of 6 cents in Sy.No.67/10 and Ext.X2 is the document having an extent of 5 cents in Sy.No.67/1. Ext.X2 is the extract of the Thandaperu Kanakka Register and the same would show that the land in Sy.No.67/1 is in the possession of the 3rd defendant and as per Ext.X3, copy of Thandaperu Kanakka Register, the properties in Sy.No.67/10 are in the name of P.B.Robert.

It is argued by the learned counsel for the plaintiff that defendants 1 to 3 are fully conscious of the factum of possession of the plaintiff. The plaintiff by creating sale deed No.1862/98 (Ext.B34) of SRO, Kuthiyathodu in favour of one B.N.Sebastian and sale deed No.5611/2005 (Ext.B35) of SRO, Kochi as well as rectification deed No.5816/2005 of SRO, Kochi (Ext.B36), in favour of one Nixon Xavior, a relative of the 1st defendant, purportedly transferring 5 cents of property and building thereon form part of the plaint schedule property. Further, it is contended that in the year 2006, the 1st defendant created conveyance deed in favour of the 3rd defendant as per sale deed No.5868/2006 of SRO, Kochi (Ext.B17) and thereafter, changed the assessment of the building in the record of the Corporation of Cochin in his name and made remittance of property tax concerned in the building.

But relying on Ext.B17, the trial court and the appellate court found that the 3rd defendant is the owner and in possession of the property and the plea of adverse possession raised by the plaintiff not established in any manner.

Even though the number of documents are umpteen, at the instance of the plaintiff, it is emphatically clear that now the property is in the name of the 3rd defendant on the strength of Ext.B17 sale deed executed in the year 2008, in continuation of his predecessors, including the 1st defendant.

In this matter, rent control eviction petitions were filed against the plaintiff stating that he is a tenant in permissive occupation of the plaint schedule building. However, those petitions were dismissed, relegating the party to file Suit for eviction and it was thereafter, the present Suit was filed by the plaintiff, claiming title by adverse possession.

Thus it has been held that the trial court as well as the appellate court concurrently negatived the claim of adverse possession at the instance of the plaintiff. Therefore, the concurrent verdicts do not require any interference by this Court.

In this case, in fact, the learned counsel for the plaintiff failed to justify any substantial question of law warranting admission of the second appeal. Order XLII Rule 2 provides thus:

“2. Power of Court to direct that the appeal be heard on the question formulated by it.-At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given in accordance with the provision of section 100.”

Section 100 of the C.P.C. provides that, (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An Appeal may lie under this section from an appellate decree passed ex parte. (3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question. Proviso says that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

In the decision in Nazir Mohamed v. J. Kamala and Others reported in [2020 KHC 6507 : AIR 2020 SC 4321 : 2020 (10) SCALE 168], the Apex Court held that:

The condition precedent for entertaining and deciding a second appeal being the existence of a substantial question of law, whenever a question is framed by the High Court, the High Court will have to show that the question is one of law and not just a question of facts, it also has to show that the question is a substantial question of law referring Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, [(1999) 3 SCC 722].

In a latest decision of the Apex Court in Government of Kerala v. Joseph, reported in [2023 (5) KHC 264 : 2023 (5) KLT 74 SC], it was held, after referring Santosh Hazari v. Purushottam Tiwari, [2001 (3) SCC 179] (three – Judge Bench), as under:

For an appeal to be maintainable under Section 100, Code of Civil Procedure ('CPC', for brevity) it must fulfill certain well – established requirements. The primary and most important of them all is that the appeal should pose a substantial question of law. The sort of question that qualifies this criterion has been time and again reiterated by this Court.

The legal position is no more res-integra on the point that in order to admit and maintain a second appeal under Section 100 of the C.P.C., the Court shall formulate substantial question/s of law, and the said procedure is mandatory. Although the phrase 'substantial question of law' is not defined in the Code, 'substantial question of law' means; of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with – technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as S.109 of the Code or Art.133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance. As such, second appeal cannot be decided on equitable grounds and the conditions mentioned in Section 100 read with Order XLII Rule 2 of the C.P.C. must be complied to admit and maintain a second appeal.

In view of the above fact, no substantial question of law arises in this matter to be decided by admitting this appeal.

In the result, this appeal is found to be meritless and the same is dismissed without being admitted.

All interlocutory applications pending in this Regular Second Appeal stand dismissed.

Registry shall inform this matter to the trial court as well as the appellate court, forthwith.