Santha vs P.V.Ayyappanezhuthassan

T.R. Ravi, J

O.S.No.138 of 1995 was filed by the 1st respondent seeking recovery of possession, permanent prohibitory injunction, mandatory injunction, and damages. Initially, the 2nd respondent herein was the only defendant in the suit, and later, his mother was added as the 2nd defendant. The appellants herein are the other children of the 2nd defendant. For convenience, the parties are referred to as per their status in the suit.

The suit was filed on 14.08.1995. The plaint schedule consists of 3 items of property shown as A schedule, B schedule, and C schedule. According to the plaintiff, A schedule and B schedule together form C schedule and the decree for recovery was sought in respect of plaint A schedule property. The plaintiff claimed title over the properties based on Exts.A1 and A2 sale deeds. Ext.A1 referred is the sale deed executed by the 2nd defendant on behalf of her children in her capacity as their guardian. Ext.A2 is the sale deed executed by the 2nd defendant in her individual capacity. Pending the suit, the plaintiff sold plaint B schedule property, and hence, no relief is sought with regard to plaint B schedule property.

The trial court dismissed the suit on 13.01.2003. The plaintiff preferred A.S.No.18 of 2003 before the District Court, Manjeri. The appeal was allowed, and the suit was decreed. The 1st defendant filed R.S.A.No.50 of 2008 before this Court. By judgment dated 14.9.2008, the second appeal was allowed, remanding the case for a fresh disposal to the trial court. The plaintiff impleaded Smt.Lekshmikutty Varasyar, the mother of the 1st defendant, as supplemental 2nd defendant on 8.2.2011, and consequential amendments were made in the plaint. The suit was again dismissed by the trial court on 30.06.2011.

The plaintiff preferred A.S.No.76 of 2014 before the Subordinate Judge, Manjeri, against the dismissal of the suit, and by judgment dated 29.05.2015, the appeal was allowed. The suit was decreed in part and remanded for considering the issue regarding the question of adverse possession and limitation. The first appellate court held that the identity of plaint A schedule property, its lie, nature, and extent stands proved as mentioned in Exts.C4 and C4(a) plan. The Court also held that the plaintiff had succeeded in proving his title over plaint A schedule property. Against the order of remand, the defendants, together, filed FAO(RO) No.211 of 2015 before this Court. This Court dismissed the appeal by judgment dated 16.03.2016. This Court found that the 2nd defendant had no property at all to convey to the 1st defendant so as to enable him to obtain a purchase certificate in respect of the property. The Court also found that the 2nd defendant did not have a case that the 1st defendant had obtained a purchase certificate in respect of the property not covered by the Ext.A5 verumpattam deed. The defendants challenged the order dated 16.03.2016 in SLP No.16429 of 2016 before the Hon'ble Supreme Court. The contention taken before the Hon'ble Supreme Court was that the properties covered by Exts.A1 and A2 documents are one and the same property, and that aspect had not been considered by the High Court and the courts below. Based on the above submission, the Hon'ble Supreme Court disposed of the Special Leave Petition, giving liberty to the defendants to file a Review Petition before this Court.

Thereafter, the defendants filed R.P.No.871/2016 before this Court, which was dismissed by judgment dated 26.07.2017. This Court held that there is no merit in the contention advanced that the properties covered by Exts.A1 and A2 are one and the same. Reliance was placed on the deposition of Smt. Lekshmikutty Varasyar, wherein she had categorically stated that the properties covered by Exts.A1 and A2 are distinct and separate. The prior documents relating to Exts.A1 and A2 sale deeds are Exts.A18 partition deed and Ext.A5 verumpattom deed, respectively. The Court found that the prior documents are also distinct and separate. The court found that the total pattam payable to Attathrikkovil Devaswom in terms of Ext.A5 verumpattam deed was ₹25/-, while the pattam payable as per Ext.A1 sale deed is ₹15/- and the pattam payable as per Ext.A2 sale deed is ₹10, together forming Rs.25/-.

On the dismissal of the Review Petition, the remand order became final. The only question that was left to be considered was the issue of adverse possession and limitation. After the remand, the Munsiff-Magistrate Court, Perinthalmanna, considered the issue of adverse possession in detail, and as per judgment dated 22.01.2018, the Court decreed the suit granting the prayer for recovery of possession with respect to plaint A schedule property. The Court held that the right of the plaintiff was not lost by adverse possession and limitation.

The Court relied on the report of the Advocate Commissioner, who inspected the property on 18.08.1995, which stated that plaint A schedule property was a vacant plot. The Court found that the documents produced on the side of the defendants were created after the suit and are fabricated documents. The Court found that, neither in the written statement which was filed on 04.12.1995, nor in the written statement filed on 4.2.2011, the execution of Ext.A23 dated 15.11.1995 is mentioned.

Against  the  judgment  dated  22.11.2018,  the  2nd defendant alone filed A.S.No.68 of 2018 before the District Court, Manjeri. The 2nd defendant died pending the appeal before the Additional District Judge-II Manjeri, and the appellants herein were impleaded as legal heirs of the deceased 2nd defendant, who was the sole appellant in A.S.No.68 of 2018. The appeal was dismissed by judgment dated 28.11.2022, confirming the judgment and decree of the trial court. The Second Appeal has been filed against the concurrent judgments of the Courts below on the question of adverse possession by supplementary appellants 2, 3, and 4 in A.S.No.68 of 2018.

Heard Sri Chethan Krishna, on behalf of the appellants and Sri K.B.Sivaramakrishnan on behalf of the 1st respondent/plaintiff.

The main contention raised by the counsel for the appellants is that the predecessor-in-interest of the appellants was impleaded as the 2nd defendant only on 08.02.2011 while the suit had been filed on 14.08.1995, and hence the relief against the 2nd defendant was barred by adverse possession and limitation. It is contended that no claim had been laid against the 2nd defendant in 1995, and hence, the possession of the 2nd defendant had become adverse by the time she was impleaded. It is contended that the 2nd defendant had been in possession in 1995 when the suit was filed against the 1st defendant, and since she was impleaded only on 08.02.2011, a decree for recovery of possession cannot be granted. The second appeal was admitted, framing the substantial question of law as to whether the title of the plaintiff over plaint A schedule property is lost by adverse possession and limitation.

The first appellate Court found that the question regarding title over A schedule property had already become final by the judgment in A.S.No.76 of 2014, which was confirmed by this Court in its Judgment in F.A.O.(RO)No.211 of 2015. The 1st appellate Court reappreciated the entire evidence on record and noted that Ext.A1 is the assignment deed executed by the deceased 2nd defendant for and on behalf of the appellants and the 1st defendant, who are her children, and Ext.A2 is an assignment deed executed by the 2nd defendant in her own capacity, both in favour of the plaintiff. The total extent of the property comprised in Ext.A1 and A2 show an extent of 2.05 Acres. But the extent available in Sy.No.90/2 is only 1.38 Acres. The plaintiff has claimed right only over the available extent of the property. Ext.A3 is the purchase certificate issued in favour of the plaintiff as per proceedings No.2160/1978, four years after the sale deeds were executed, for an extent of 1 Acre and 15 cents. Since the plaintiff was serving in the Defence Forces, his father had applied for a purchase certificate for the remaining extent of 23 cents. The application was numbered S.M.No.253 of 1983, and the 2nd defendant was a party to the proceedings. Ext.A15 is the order passed in the said proceedings, wherein it is found that the 2nd defendant did not have any right over the property. The court took note of the decree in O.S.No.99 of 1989, filed by the brothers of the plaintiff, contending that the properties covered by Exts.A1 and A2 were Binami purchases made in the name of the plaintiff by their father Late Narayanan Ezhuthachan. O.S.No.99 of 1989 was decreed on 19.03.1991, and the said decree was reversed in the appeal filed by the plaintiff as A.S.No.468 of 1991. A Special Leave Petition filed against the said judgment was also dismissed by the Hon'ble Supreme Court by Ext.A9 judgment dated 06.08.2001. The 2nd defendant (predecessor of the appellants herein) was examined as PW1 in O.S.No.99 of 1989, and her deposition has been marked as Ext.A7, wherein she had admitted the execution of Exts.A1 and A2 in favour of the 1st respondent.

Exts.A20 and A21 are reports filed by the Tahsildar, who measured the properties. The said documents have been produced to prove that the plaintiff is the title holder of the entire extent covered by the plaint 'C' schedule. There are four sets of Commission reports and plans prepared during the trial. Exts.C1 report and C1 (a) plan dated 14.09.1995 show that the plaint 'A' schedule property is a vacant site without shed, house and fencing. Ext.C2 is a commission report filed on 01.12.1997. Exts.C3 and C3 (a) are the report and plan filed on 31.01.2000 and Exts.C4 and C4(a) dated 03.01.2011 are the last report and plan. It is in Ext.C4 that the Advocate Commissioner has noted a new construction. In Ext.C4 (a) plan, the Advocate Commissioner has identified plaint A Schedule, B Schedule, and C Schedule properties separately. It is thereafter that the plaint A schedule property was amended in accordance with the Commission report and plan showing the extent as 34 cents.

The claim of adverse possession is put forward alleging that the 2nd defendant was residing in plaint A schedule property since 1974, performing kazhakam in a temple nearby. The specific case put forward was that while executing Ext.A2 document, she had retained possession of some portion of the property, including her tharavadu house, and she was residing there and possessing the tharavadu house even after the execution of Ext.A2. It is contended that the plaintiff did not question her possession, and hence, it is adverse to the possession of the plaintiff. The claim is that, even though she had executed Exts.A1 and A2 documents, she had not parted with possession of plaint A schedule property. She claimed possession over 34 cents of property. Reliance is placed on Ext.B2 purchase certificate and Ext.B10 order in SMP 55/93 of the Land Tribunal, Perintalmanna. Reliance is also placed on Ext.A22 document, executed in 1992 by the 2nd defendant in favour of the 1st defendant and Ext.A23 document executed on 15.11.1995 by the 1st defendant in favour of the 2nd defendant. At the same time, going by Ext.A2 executed by the 2nd defendant in favour of the plaintiff as early as in 1974, only three cents were retained by the 2nd defendant.

It is not disputed that the property was obtained by the 2nd defendant as per Ext.A5 verumpattam deed. Ext.A5 verumpattam deed was followed by Ext.A18 partnership deed, by which the property was allotted to the share of the 2nd defendant. A right was reserved in Ext.A18 in favour of the 2nd defendant to reside in the house situated therein and to do kazhakam work; contends the 2nd defendant. The 2nd defendant contends that the tharavadu house was demolished in 1992, and only a small shed was  remaining  there  and  that  it  was  for  the  purpose  of construction of a new house that the 2nd defendant had transferred the property to the 1st defendant to facilitate the 1st defendant to obtain a loan for construction of a house. It is also contended that the 1st defendant obtained Ext.B2 purchase certificate on the basis of Ext.A22 sale deed and started the construction of a new house in the year 1995, when the suit was instituted against the 1st defendant alone. It is further contended that since the 2nd defendant was in possession of A schedule property from 1974, the right of the 1st respondent has been lost by adverse possession in the year 1986 itself and the same cannot be revived by filing a suit against the 1st defendant. Even though all these conditions are taken, the fact remains that after the impleadment of the 2nd defendant, the proceedings were continued by the defendants together, and it was only when A.S.No.68 of 2018 was filed that the 1st defendant was not included as an appellant.

In order to show possession, the 2nd defendant relied upon oral evidence of DW1 to DW3 and the series of basic tax receipts as revenue receipts. Reliance was also placed on Exts.A16 to A20 documents. The recitals in Ext.A1 show that the house in the property was in a deteriorated condition. The plaintiff has a case that after the sale of the property in his favour, the 2nd defendant had purchased property at Chemmanniyode and started residing there. Reliance is also placed on the address shown in the affidavit filed along with the written statement in 2011 wherein the address is shown at Chemmanniyode. It is also pointed out that the address of the 2nd defendant, which is seen in Exts.A22 and A23 documents, is also of Chemmanniyode. Ext.A15 order passed by the Land Tribunal also shows that the 1st defendant was residing at Chemmanniyode. Ext.A4 judgment shows the address of the 2nd defendant at Chemmanniyode. The documents relating to the loan obtained from Perinthalmanna Co-operative Agricultural and Rural Development Bank Ltd. also show the address of the 2nd defendant at Chemmanniyode. The above aspect was sought to be explained by the 2nd defendant by stating that she had purchased the property at Chemmanniyode for her children, and she was occasionally residing with her children.

A reappreciation of the entire evidence on record is not within the jurisdiction of the High Court while considering a second appeal under Section 100 of the Code of Civil Procedure. (See Gurnam Singh (D) by LRs & Ors. v. Lehna Singh (D) by LRs [(2019) 7 SCC 641)]. The facts and findings have been narrated in the previous paragraphs only for the purpose of showing that the trial court, as well as the appellate court, have considered the evidence on record in extenso before arriving at their finding that the 2nd  defendant had not perfected her title by adverse possession and limitation. The substantial questions of law on which the appeal was admitted are the following;

“i) Whether recovery of possession on the strength of title ordered with respect to plaint A schedule property is legal when Ext.A2 title deed itself specifies that 3 cents and the improvements therein is left out of transfer by 2nd defendant?

ii) When the remand order of the first appellate court as confirmed by this Court and Apex Court confined to the plea of adverse possession and disregarding that the trial court and first appellate court went into the question of title, whether the defendant is estopped from raising the plea of title in second appeal since plaintiff also invited a decision on title by the courts below?”

As regards the first question that is raised, the matter has become final by the judgment of this Court in FAO No.211 of 2015. The question of title of the plaintiff had become final, and no reliance can be placed any longer on Exts.A22 and A23 to reagitate the question of title. That the 2nd defendant had conveyed the entire property in her possession to the plaintiff, and she did not have any more property to convey to the 1st defendant so as to enable him to obtain a purchase certificate in respect of the same, has also become final.  Since it is already held that the 2nd defendant did not have any property left after Exts.A1 and A2, to convey to the 2nd defendant, there can be no case that either 34 cents or 3 cents was still available for transfer. Since on facts it is found that no property is left out, the contention that 3 cents have been  retained  by  the  2nd  defendant  as  per  Ext.A2  no  longer survives for consideration. Though at the time of admission of the second appeal such a question was framed as a substantial question of law, having gone through the records of the case and heard the counsel on either side, this Court is convinced that the question as framed does not really arise for consideration as a question of law. Regarding the second question, the question of title had already become final by the judgment of this Court in FAO (RO) No.211 of 2015 and the judgment in R.P.No.871 of 2016, confirming the findings in AS No.76 of 2014 with regard to title. The finality of the said issue was accepted by the appellants and the parties had proceeded to litigate based on the remand. The remand was only for the purpose of ascertaining whether the remedy of recovery of possession would be barred by adverse possession and limitation in favour of the 2nd defendant. The trial court and appellate court cannot be said to have gone into the question of title again after the remand since it is clear from a reading of the said judgments that the courts below have noted the fact that the question of title has already become final. As such, the said question cannot be re-opened at the stage of the second appeal. The appellants, who are legal representatives of the 2nd defendant, cannot have a better claim than what the 2nd defendant had.

No substantial question of law warranting interference with the concurrent findings of the trial court and the appellate court has been brought out. There is no legal infirmity in the decisions arrived at by the trial court and the first appellate court. The second appeal fails and is dismissed.