Ummer Haji vs Puthampurayil @ Permunderiparambil Abdulla [DEAD]

C.Pratheep Kumar, J

This second appeal has been preferred by the 1st respondent in AS No.23 of 2013 on the file of the Subordinate Judge's Court, Thalassery, who is the plaintiff in O.S.No.139 of 2009 on the file of the Munsiff's Court Thalassery, against the judgment dated 20.11.2014, allowing the said appeal and thereby dismissing the suit.

For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court.

The plaintiff filed the above suit against defendants 1 to 5 for recovery of possession and injunction. The plaint A schedule property consists of 12.80 cents of landed property and a building therein. Plaint B schedule is the residential building situated in A schedule property. Previously, plaint A schedule property belonged to the 1st defendant. He sold the said property to one Safiya. As requested by the defendants, Safiya granted six months time to the defendants to vacate the building therein. As per Exhibit A1 sale deed of the year 2008, the plaintiff purchased it from Safiya. The defendants agreed to vacate the building within a period of six months, to the plaintiff also, and the said period expired on 30.11.2008. In spite of repeated demands, they are delaying to vacate the building, which resulted in filing the suit.

Before the trial court, the 1st defendant remained ex-parte while the other defendants contested the case. They have taken a contention that the 1st defendant had no alienable right over the plaint schedule property and also that they have also contributed for purchasing the plaint schedule property. After evaluating the available evidence, consisting of the oral testimonies of PW1, DWs 1 to 4 and Exhibits A1 to A6 and B1 to B8, the trial court decreed the suit permitting the plaintiff to recover possession of Plaint B schedule building from the defendants and also restrained the defendants from taking usufructs from A schedule property and also from interfering with the peaceful possession and enjoyment of A schedule property by the plaintiff.

The defendants 2, 4 and 5 challenged the above judgment and decree of the trial court before the Subordinate Judge's Court, Thalassery, who in turn reversed the findings of the trial court and dismissed the suit. Dissatisfied with the above judgment and decree of the First Appellate Court, the plaintiff preferred this Second Appeal, raising various contentions.

At the time of admission, this Court has formulated the following substantial questions of law:

“(i) Has the lower appellate court committed legal error in finding that the plaintiff failed to prove possession of A schedule property and was it required to claim recovery of possession of A schedule property?

(ii) Whether the lower appellate court failed in appreciating the evidence correctly whereby it entered into a perverse finding?”

The trial court as well as the First Appellate Court concurrently found that the plaint A schedule property exclusively belongs to the plaintiff. The First Appellate Court interfered with the finding of the trial Court solely on the ground that in the plaint, there is no separate prayer for recovery of possession of the landed property appurtenant to the plaint B schedule residential building.

The Learned counsel for the plaintiff would argue that the defendant's 2 to 5 are in occupation of the residential building alone and that the property surrounding the residential building is in the exclusive possession and enjoyment of the plaintiff. It was in the above context, the residential building was separately scheduled as plaint B schedule and recovery of possession was sought for only in respect of the B schedule. At the time of arguments, the respondents have not turned up.

As I have already noted above, plaint A schedule property consists of a residential building as well as landed property having an extent of 12.80 cents, while in the B schedule, the residential building alone is scheduled. It is true that at the time of evidence, the defendants 2 to 5 have taken a contention that they are in possession and enjoyment of the entire plaint A schedule property. Though they have raised a contention that the 1st defendant has no alienable right over the plaint A schedule property and that they have also contributed for purchasing the said property, the trial court a well as the First Appellate Court found that there is absolutely no merit in the above claim of defendants 2 to 5. Both the courts also found that plaint A schedule property exclusively belongs to the plaintiff and also that the defendants 1 to 5 have no manner of right in plaint A schedule property, except that they were permitted to reside in B schedule building as a licensee. In the above circumstance, the plaintiff has got every right to get a decree for recovery of possession of plaint A schedule property on the strength of title.

Now, the only question that remains to be considered is whether the defendants are in possession of the landed property described in plaint A schedule also, in addition to plaint B schedule building and if so, whether the plaintiff is to be forced to fight another round of litigation to recover possession of the plaint schedule property.

In order to prove possession and enjoyment over plaint A schedule property, in addition to Exhibit A1 title deed, the plaintiff produced Exhibit A2 and A6 basic tax receipts issued from Kodiyeri Village Office, Exhibit A3 Ownership Certificate issued from New Mahe Grama Panchayat, Exhibit A4 Building tax receipt issued from New Mahe Grama Panchayat and Exhibit A5 receipt issued from New Mahe Grama Panchayat. Those documents are of the year 2011 and 2012.

It is true that the defendants also produced Exhibit B1 to B3 building Tax receipts of the years 2009 and 2010, issued from New Mahe Grama Panchayat, Exhibit B4 and B5 Ration Cards of the periods 1996-2000 and 2002-2006 in the name of 1st defendant and photocopy of ration card in the name of 2nd defendant, namely wife of the 1st defendant, of 2008. Since 1st defendant is the previous owner of Plaint A schedule property, which was assigned in favour of one Safiya, from whom the plaintiff obtained the same as per Exhibit A1 sale deed of the year 2008, the prior tax receipts and ration cards in the name of 1st defendant and his wife, namely the 2nd defendant, has nothing to do with the right, title and possession of the plaintiff over the plaint A schedule property.

Relying upon the decision of the Hon'ble Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria [2012 KHC 4181], the learned counsel for the plaintiff would argue that since the plaintiff has proved his absolute title over the plaint A schedule property, he is entitled to recover possession of the said property and that the burden is on the defendants to prove that they are justified in continuing their possession thereon. Referring to the evidence adduced by the defendants, the learned counsel would argue that the defendants have miserably failed in proving that they are in possession and enjoyment of the appurtenant landed property also, along with residence in the B schedule building.

In the above decision, the Hon'ble Supreme Court held that:

“62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.

Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum.

There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the former, and it is the latter which has seen much abuse and misuse before the Courts.

A suit can be filed by the title holder for recovery of possession or it can be one for ejectment of an ex-lessee or for mandatory injunction requiring a person to remove himself or it can be a suit under Section 6 of the Specific Relief Act to recover possession.

A title suit for possession has two parts - first, adjudication of title, and second, adjudication of possession.

If the title dispute is removed and the title is established in one or the other, then, in effect, it becomes a suit for ejectment where the defendant must plead and prove why he must not be ejected.

In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.”

In paragraph 70, the Hon'ble Supreme Court held that the person, who claims possession over an immovable property, has to give all such details as enumerated therein, in the following words:

“70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.

(a) who is or are the owner or owners of the property;

(b) title of the property;

(c) who is in possession of the title documents;

(d) identity of the claimant or claimants to possession;

(e) the date of entry into possession;

(f) how he came into possession- whether he purchased the property or inherited or got the same in gift or by any other method;

(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;

(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;

(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;

(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and

(k) basis of his claim that not to deliver possession but continue in possession.”

In paragraph 76, the Court further held that:

“76. In pleadings, whenever a person claims right to continue in possession of another property, it becomes necessary for him to plead with specificity about who was the owner, on what date did he enter into possession, in what capacity and in what manner did he conduct his relationship with the owner over the years till the date of suit. He must also give details on what basis he is claiming a right to continue in possession. Until the pleadings raise a sufficient case, they will not constitute sufficient claim of defence.”

In paragraph 101, the principles of law on the subject are summarised as follows:

“101. Principles of law which emerge in this case are crystallized as under:-

No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.

Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.

The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.

The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.

The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”

On a perusal of the evidence of DWs 1 to 4, it can be seen that defendants 2 to 5 are not claiming any independent right over the plaint A schedule property. In fact they are claiming under the 1st defendant, who remained ex parte. The conduct of the 1st defendant in remaining ex parte is quite obvious, because he had already assigned his entire right in the A schedule property and as such now he has no subsisting right in it. The defendants 2 to 4 could not produce even a scrap of paper to substantiate their claim that they are enjoying the entire plaint A schedule property, in addition to residence in building situated therein.

DWs 1 and 2 are the defendants 4 and 5, and as such they are interested witnesses. Though DW2 claimed that there is independent witnesses to prove that the defendants are enjoying plaint schedule property, no such evidence is forthcoming. DW3 has only stated that the defendants 2 to 4 are residing in the building in the plaint schedule property. The person who allegedly plucks coconuts from the property was not examined. DW4, who is a friend of the 4th defendant during the cross-examination deposed that he does not know for whom the the coconut climber plucked coconuts from that property. In this case, there is absolutely no independent evidence to substantiate the claim of the defendants that they are in possession and enjoyment of the entire plaint A schedule property, including Plaint B schedule building. In the above circumstance, the learned First Appellate Court was not justified in holding that the plaintiff is not entitled to recover possession of the plaint B schedule building as there is no separate prayer for recovery of possession of entire A schedule property.

The above finding of the First Appellate Court, in spite of the fact that the plaintiff has proved his title over the entire plaint schedule property, that the defendants have no independent right over the said property and that they are only permissive occupants in the residential building therein, is perverse and as such it is liable to be set aside. Accordingly, the substantial questions of law formulated are answered accordingly.

In the light of the above finding on substantial questions of law formulated, the impugned judgment and decree of the First Appellate Court is liable to be set aside and the judgment and decree of the trial court is liable to be restored.

In the result, the impugned judgment and decree of First Appellate Court in AS.No.23 of 2013 dated 20.11.2014 is set aside and judgment and decree of the trial court in O.S. No.139 of 2009 dated 18.12.2012, is restored.