Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE6H DAY OF NOVEMBER201315TH KARTHIKA, 1935 RSA.No. 935 of 2013 (C) ----------------------- AGAINST THE JUDGMENT
IN AS362010 of ADDL.SUB COURT, IRINJALAKUDA DATED0703-2013 AGAINST THE JUDGMENT
IN OS12006 of MUNSIFF COURT, KODUNGALLUR DATED2801-2010 APPELLANT/APPELLANT BEFORE THE SUB COURT/PLAINTIFF: -------------------------------------------------------------------------------------------- KRISHNA KUMAR, AGED53YEARS S/O.NADUMURI PARAMESWARAN, VEMBALLOOR DESOM PENAGAD AMSOM, SREENARAYANAPURAM VILLAGE KODUNGALLUR TALUK. BY ADVS.SRI.K.S.RAJESH SRI.M.SHAJU PURUSHOTHAMAN RESPONDENTS/RESPONDENTS BEFORE THE DISTRICT COURT/DEFENDANTS: ----------------------------------------------------------------------------------------------------------------- 1. RAMADASAN, AGED53YEARS S/O.PANAKKAPARAMBIL VELANDI, THRITHALLUR DESOM VADANAPPALLY AMSOM, CHAVAKKAD TALUK THRISSUR DIST.PIN - 680 619.
2. LAKSHMI, W/O.POOVATHUMKKADAVIL UNNIKRISHNAN, AGED41YEARS PAPPINIVATTOM VILLAGE, KODUNGALLUR TALUK THRISSUR DIST, PIN - 680 685.
3. SHANMUGHAN, S/O.THAKARAKUNNATH RAJAN, AGED60YEARS PADIYOOR VILLAGE AND DESOM, MUKUNDAPURAM TALUK THRISSUR DIST PIN - 680 695. R2 BY ADV. SRI.T.N.MANOJ (CAVEATOR) THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON0611-2013, ALONG WITH RSA. 936/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JJJ N.K. BALAKRISHNAN, J.
------------------------------------------ R.S.A. Nos. 935 & 936 of 2013 ------------------------------------------ Dated this the 6th day of November, 2013
JUDGMENT
The plaintiff in O.S. No.1/2006 is the appellant in RSA No.935/2013. He is the defendant in O.S. No.817/2006. The suit O.S. No.1/2006 was dismissed. Accordingly, in the other suit, a decree for injunction was passed against him.
2. The plaint schedule property originally belonged to Parameswaran, the father of the plaintiff in O.S. No.1/2006. Parameswaran executed the sale deed in respect of 6 cents of land in favour of the 1st respondent ( his son-in-law) in 1986. It is stated that out of that 6 cents of land 3 cents had already been sold to others. It is also stated that Parameswaran had executed a sale deed in respect of 34 cents of land in favour of another daughter. R.S.A. Nos. 935 & 936/2013 -2- 3. The plaintiff in O.S. No.1/2006 contends that the he (the plaintiff) had trespassed upon the suit property in 1986 and since then he had been in possession of the suit property openly and peaceably as of right and in denial of true owner's title and thus he has perfected title by adverse possession and limitation. This contention was resisted by the defendants in that suit contending that the shop room situated in the suit property was in the possession of the defendants. Petition was filed by Parameswaran for evicting that tenant. Parameswaran died in the year 2000. An order for eviction was passed in that suit (O.S. No.58/1986). Execution Petition E.P. No.124/1993 was passed for getting delivery of the building mentioned therein. Ext.B5 is the copy of the execution petition. The 1st defendant got himself impleaded in that Execution Petition and pursuant thereto the 1st defendant obtained delivery of that building. Therefore, the defendants would contend that the plea R.S.A. Nos. 935 & 936/2013 -3- raised by the plaintiff ( the appellant herein) that he had been in possession of the property since 1986 is a sheer myth. The contention that the 1st defendant had been in possession of the property since 1986 was found against by the courts below.
4. It was held by the Apex Court in State of Haryana v. Mukesh Kumar and Others - (2011) 10 SCC404 "A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British. It is important to note that these days the English Courts are taking a very negative view towards the law of adverse possession. The English law was amended and R.S.A. Nos. 935 & 936/2013 -4- changed substantially to reflect these changes, particularly in light of the view that property is a human right adopted by the European Commission".
5. The Hon'ble Supreme Court has held in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan - (2009) 16 SCC517as : "32. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. the law ought not to benefit a person who in a clandestine manner takes possession of the property of a person who in a clandestine manner takes possession R.S.A. Nos. 935 & 936/2013 -5- of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation".
6. The other suit O.S. No.817/2006 was filed by the defendants in O.S. No.1/2006 for an injunction contending that the appellant had attempted to trespass into the property. It was stated that the 2nd defendant therein had sold 2.290 cents from out of the plaint schedule property to the 3rd defendant as per sale deed no.711/2008. It was R.S.A. Nos. 935 & 936/2013 -6- contended by the respondents that the plaintiff was only a licensee in respect of the shop room situated in the suit property and that license was revoked. On that basis, mandatory injunction was claimed.
7. The courts below have analysed the evidence in the correct perspective and came to the right conclusion that the plea of adverse possession set up by the appellants remained unsubstantiated. The trial court granted a decree in favour of the plaintiff in O.S. No.817/2006. The appeal filed against the same was dismissed by the lower appellate court.
8. In view of the findings entered by the courts below that the plea of adverse possession set up by the appellant is unsustainable, the decree for mandatory injunction granted by the courts below is only to be sustained. No substantial question of law arises in these appeals. R.S.A. Nos. 935 & 936/2013 -7- In the result both these appeals are dismissed. Sd/- N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj