Thayyil Sreemathi vs Alanjery Rajeswari
2021 Latest Caselaw 19058 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
MONDAY, THE 13TH DAY OF SEPTEMBER 2021/22ND BHADRA, 1943
                        RSA NO.1166 OF 2019


Against the judgment and decree dated 30.3.2019 in
A.S.No.1/2018 on the file of the third Additional District Court,
Kozhikode which arose out of the judgment and decree dated
26.9.2017 in O.S.No.337/2001 on the file of the Principal Munsiff's
Court-II, Kozhikode
APPELLANT/APPELLANT/DEFENDANT No.2:

             THAYYIL SREEMATHI,
             AGED 73 YEARS,
             W/O.LATE VELAYUDHAN,
             MUTHALAKANDI PARAMBA,
             OLAVANNA AMSOM AND DESOM,
             KOZHIKODE, PIN-673 019.
             BY ADVS.
                 SRI.M.VIVEK RABINDRANATH
                 SRI.V.T.MADHAVANUNNI
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANT No.1:
    1    ALANJERI RAJESWARI,
         AGED 46 YEARS,
         W/O.MURALEEDHARAN, KALLAI HOUSE,
         THATTARAKKULAM PARAMBA, CHERUVANOOR VILLAGE,
         OLAVANNA AMSOM AND DESOM, NALLALAM (PO),
         KOZHIKODE-673 027.
    2    THAZHATHEYIL DASAN,
         AGED 73 YEARS,
         S/O.LATE AMMUKUTTY, MUTHALAKANDI PARAMBA,
         OLAVANNA AMSOM AND DESOM, OLAVANNA(PO),
         KOZHIKODE-673 019.
           R1 BY ADVS.
               SRI.MUNEER AHMED
               SRI.MUDASSER AHMED
      THIS    REGULAR    SECOND   APPEAL    HAVING    COME   UP   FOR
ADMISSION      ON   10.09.2021,    THE     COURT     ON   13.09.2021
DELIVERED THE FOLLOWING:
 R.S.A.No.1166 of 2019


                                 ..2..




                              JUDGMENT

This Regular Second Appeal is directed against

the judgment and decree dated 30.3.2019 in

A.S.No.1/2018 on the file of the third Additional

District Court, Kozhikode (hereinafter referred to as

'the first appellate court') confirming the judgment

and decree dated 26.9.2017 in O.S.No.337/2001 on

the file of the Principal Munsiff's Court-II, Kozhikode

(hereinafter referred to as 'the trial court').

2. The appellant is the 2nd defendant before the

trial court. The 1st respondent is the plaintiff and the

2nd respondent is the 1st defendant therein. The suit

was filed for recovery of possession and consequential

permanent prohibitory injunction. For brevity, the

parties are hereinafter referred to as referred in the

original suit unless otherwise stated. R.S.A.No.1166 of 2019

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3. The averments in the plaint in brief are as

follows:-

Plaint A schedule property having an extent

of 61 cents of land was set apart to the share of the

plaintiff by virtue of a partition deed executed on

17.9.1981. The plaint A schedule property belongs to

the plaintiff. The plaint B and C schedule properties

belong to the 1st and 2nd defendants respectively which

they admittedly obtained as 'kudikidappu' within the A

schedule property. The plaintiff has been in possession

and enjoyment of plaint A schedule property excluding

the plaint B and C schedule properties. After obtaining

'kudikidappu' rights in favour of the defendants 1 and

2, they have made several attempts to trespass into

the plaint A schedule property and are trying to annex

a portion of the same. There are no clear cut R.S.A.No.1166 of 2019

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boundaries separating the properties. There is a 2 feet

wide way through the plaint A schedule property for

the ingress and egress to the property of the 1 st

defendant. The way to the property of the 2 nd

defendant is only 4 feet wide which is through the

northern boundary of the plaint A schedule property.

The defendants are attempting to widen their

respective pathways. Hence, a suit was filed for

permanent prohibitory injunction restraining the

defendants from trespassing into the plaint A schedule

property.

4. A commission was taken out during the

pendency of the proceedings and based on the

commission report the plaint was amended. The

commissioner reported that the 2 nd respondent who is

the 1st defendant in the suit is in wrongful possession R.S.A.No.1166 of 2019

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of 2 cents of plot EFGHA marked in the commission

report and shown as D schedule in the plaint and the

2nd defendant is in wrongful possession of 2 cents of

plot marked as UVWXY and shown as E schedule in

the plaint. The prayer in the plaint was amended

claiming recovery of possession of the plaint D and E

schedule properties.

5. There is no dispute between the plaintiff and

the 1st defendant. However, the defendants filed

written statement and additional written statement

raising the following contentions:-

6. The 2nd defendant filed O.A.No.1409/1970

before the Land Tribunal for 'kudikidappu' right.

During the pendency of the original proceedings, the

matter was settled in the presence of mediators.

Thereby the plaintiff's father Alancherry Gopi R.S.A.No.1166 of 2019

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relinquished 6.85 cents of land appurtenant to

kudikidappu house and a pathway having a length of

24 feet and a width of 6 feet in favour of the 2 nd

defendant in the year 1970. As per the scheme of the

Kerala Land Reforms Act (hereinafter referred to as

'the KLR Act'), the 2nd defendant was entitled to get 10

cents as 'kudikidappu'. The plaintiff, who is the

daughter of the second wife of Alancherry Gopi,

acquired right in the plaint A schedule property

excluding the property of the 2nd defendant only on his

death. Subsequent to the death of Alancherry Gopi,

the plaintiff attempted to construct a compound wall

encroaching into the property of the 2 nd defendant and

also attempted to reduce the width of the pathway

leading to the property of the 2nd defendant. The

plaintiff is not having possession of the entire plaint A R.S.A.No.1166 of 2019

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schedule property as claimed by her in the plaint.

Even if the plaintiff is having any right over the

property the same is lost by adverse possession and

limitation.

7. The trial court, on the side of the plaintiff,

examined PW1 and marked Exts.A1 to A4. On the side

of the defendants, DWs.1 and 2 were examined and

marked Ext.B1. The Advocate Commissioner was

examined as CW1 and marked Exts.C1 to C3.

8. After having heard both sides, the trial court

decreed the suit in part permitting the plaintiff to

recover possession of plaint E schedule property from

the 2nd defendant. The 2nd defendant was also

restrained from trespassing into the property in

possession of the plaintiff in accordance with Ext.C2

plan except using 4 feet wide way through the R.S.A.No.1166 of 2019

..8..

northern extremity of the property in the possession

of the plaintiff as noted by the commissioner in Ext.C2

plan by way of a decree of permanent prohibitory

injunction. The 2nd defendant preferred A.S.No.1/2018

before the first appellate court. As against the

dismissal of the suit against the 1 st defendant the

plaintiff filed A.S.No.170/2017 before the very same

court. The first appellate court heard the appeals

jointly. By the common judgment and decree dated

30.3.2019, the first appellate court dismissed both the

appeals. Hence the 2nd defendant preferred this

second appeal.

9. Heard the learned counsel for the appellant.

10. The learned counsel for the appellant

contended that the suit for recovery of possession of

plaint E schedule property is not maintainable in the R.S.A.No.1166 of 2019

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absence of any pleading by the plaintiff regarding the

date of dispossession of the plaintiff from the said

property which has resulted the suit without any cause

of action. According to the learned counsel, the 2 nd

defendant has been in possession of the plaint E

schedule property since 1970 as adverse to the real

owner. According to the learned counsel, the plaintiff

suppressed the material fact of dispossession to get

over the bar of limitation under Section 65 of the

Limitation Act.

11. The 2nd defendant is a 'kudikidappukari' over

the disputed property. Ext.A3 is the copy of the order

passed by the Land Tribunal, Kozhikode in

O.A.No.1409/1970. By virtue of Ext.A3, the 2nd

defendant obtained 'kudikidappu' right over the C

schedule property having an extent of 5 cents of land. R.S.A.No.1166 of 2019

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The 2nd defendant has no case that the excess

property in her possession belongs to some other

person other than the plaintiff. Ext.C2 is the plan

prepared during the trial. Blue dotted portion therein

is the excess property found with the 2nd defendant

which is scheduled as E schedule.

12. The plaint A schedule property originally

belonged to Alancherry Gopi who is the father of the

plaintiff. The property devolved upon the plaintiff by

virtue of Ext.A1 partition deed No.4343/1981. The

case of the plaintiff is that excess 2 cents of land is

included in Ext.A1 and covered in A schedule property.

The trial court and the first appellate court

concurrently held that the blue dotted area identified

in Ext.C2 plan as excess land in the possession of the

2nd defendant is found abutting into the plaintiff's R.S.A.No.1166 of 2019

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property in Re.Sy.No.5/3. There is no case for the

defendant that the property around E schedule

property was sold out by the plaintiff. The boundary of

the E schedule property is also within the A schedule

property.

13. The crucial question which arises for

consideration in this appeal is as to what is the

Scheme of the Act in regard to the decision as to the

status of a person as 'kudikidappukaran', subsequent to

the decision of the competent authority in this regard.

Admittedly, the 2nd defendant obtained 'kudikidappu'

right in respect of 5 cents of land as per Ext.A3

pattayam issued by the Land Tribunal, Kozhikode

pursuant to a compromise entered into between the

parties during the pendency of original proceedings

although the 2nd defendant was entitled to get more as R.S.A.No.1166 of 2019

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per Section 80A and 80B of the Kerala Land Reforms

Act. What was granted by the Tribunal was only for an

area of 5 cents of land as per Ext.A3 pattayam. The

extent of plot UVWXY is 2 cents and the extent of

remaining property in the possession of the 2 nd

defendant is 5 cents. UVWXY is the plaint E schedule

property. In view of the above circumstances, the trial

court and the first appellate court concurrently held

that the plaintiff has proved title over plaint E

schedule property, i.e., UVWXY and the 2nd defendant

has failed to prove her title over the same as part of

the kudikidappu right obtained by her by virtue of

Ext.A3.

14. The 2nd defendant was only a

kudikidappukari of the property. The plaintiff obtained

property by virtue of Ext.A1 partition deed subsequent R.S.A.No.1166 of 2019

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to the death of Alancherry Gopi who is none other

than her father. The 2nd defendant claims excess area

to a larger extent than 5 cents assigned to her by

virtue of pattayam issued by the Land Tribunal. The

pattayam would irresistibly lead to the inference that

the kudikidappu portion was confined to 5 cents only.

The pattayam has become final and there was no

challenge to the pattayam issued. The commissioner

located the property as per the pattayam and correctly

carved out the excess area in the possession of the 2 nd

defendant. The extent of land which the

kudikidappukaran is entitled to purchase as per the

scheme of the KLR Act is 3 cents in a city or major

Municipality; or 5 cents in any other Municipality; or

10 cents in a Panchayat area or township. Since the

property is situated within the Panchayat area the 2 nd R.S.A.No.1166 of 2019

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defendant might be under the impression that she is

entitled to get at least 10 cents as kudikidappu right.

However, as indicated earlier, a pattayam was issued

for 5 cents based on consensus by the Land Tribunal.

The pattayam issued by the Land Tribunal is

conclusive regarding the right, title and interest of the

2nd defendant covered by the pattayam.

15. The source and genesis of possession of the

2nd defendant is based on her kudikidappu right over

the property. This is an independent right claimed by

the 2nd defendant. Accordingly, she obtained 5 cents of

land from the competent authority as kudikidappu

right. For her convenience, she extended her right and

possession over the property more than the

kudikidappu and claimed adverse possession over the

excess land. Relying on Challa Srinivasa Rao, R.S.A.No.1166 of 2019

..15..

Krishna District & another v. Challa Subbarao

and 4 others, Krishna District [(2012) 3 ALT 148]

the learned counsel for the appellant contended that

in a suit for recovery of possession, it is fundamental

that the plaintiff must state the factum of

dispossession from the property. According to the

learned counsel, though under the Limitation Act,

1908, it was obligatory on the part of the plaintiff to

state the date on which he was dispossessed, to know

whether the suit was filed within the period of

limitation. Thus, it is contended that unless the

plaintiff states that he has been dispossessed, the

very basis for institution of the suit becomes shaky.

The facts and circumstances in Challa Srinivasa

Rao's case is totally different from this case. The said

suit was filed for the relief of possession of the suit R.S.A.No.1166 of 2019

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property in which the defendants contended title to

the suit property by way of a gift. The suit was

concurrently decreed. The second appeal filed by the

defendants/appellants were also dismissed. In the said

case in paragraph 15 of the judgment it is clearly held

that whether a suit for recovery of possession can be

instituted without stating the factum of dispossession

and whether such a suit can be decreed at all does not

arise for consideration. Even assuming that date of

dispossession is immaterial in this case, the mere

possession of the suit property for a very long time is

not sufficient to hold that the 2 nd defendant has been

in actual, open, notorious, hostile, continuous and

exclusive possession over the statutory period to claim

adverse possession over the excess land. It is very

clear that the 2nd defendant was inducted into the R.S.A.No.1166 of 2019

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plaint schedule property by the permission granted by

the then landlord. Later, by virtue of the provisions

under the KLR Act she was conferred with the

kudikidappu right in respect of 5 cents of land. Merely

because she continued in possession of certain portion

of land in excess of the kudikidappu right, she is not

justified in contending that she is entitled to get title

over the property by adverse possession. When a

person was inducted into the property by way of

permission granted, it was on the part of the party in

possession to adduce evidence to show that she was

in possession of the property adverse to the true

owner. Mere possession however long does not mean

that it is adverse to the true owner. In view of the

above circumstances, the two courts below

concurrently held that the plea of adverse possession R.S.A.No.1166 of 2019

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is unsustainable. A person in possession of a property

by way of permission granted cannot contend that it is

obligatory on the part of the plaintiff to plea the date

of dispossession. Such a plea is not available to the

party who has been in possession by way of

permission granted.

16. A second appeal is not a matter of right. A

second appeal only lies on a substantial question of

law. It was not open to the 2nd defendant to re-agitate

facts or to call upon the High Court to re-analyse or

re-appreciate evidence in a second appeal. Concurrent

findings are sought to be set aside in this appeal. The

findings of the trial court and the first appellate court

are based on cogent and binding documents of title

including the commission report and plan prepared

during the pendency of the proceedings demarcating R.S.A.No.1166 of 2019

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the property sought to be recovered from the 2nd

defendant. No substantial question of law is urged

before this Court. Hence, this second appeal cannot be

entertained as a matter of course.

Resultantly, this Regular Second Appeal is

dismissed. There will be no order as to costs. Pending

applications, if any, stand closed.

Sd/-

N.ANIL KUMAR, JUDGE skj