Kerala High Court
Seetha vs Unni on 31 August, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
WEDNESDAY, THE 31ST DAY OF AUGUST 2022 / 9TH BHADRA, 1944
RSA NO. 862 OF 2020
AGAINST THE ORDER/JUDGMENTAS 39/2017 OF PRINCIPAL SUB COURT,ATTINGAL
OS 5/2013 OF MUNSIFF COURT,VARKALA
APPELLANTS/APPELLANTS/DEFENDANTS:
1 SEETHA
AGED 63 YEARS
D/O. CHELLAPPAN ASARI, ALUVILA VEEDU, NEAR GHS, VARKALA VILLAGE
AND DESOM, THIRUVANANTHAPURAM DISTRICT - 695001,
2 RAMANAN
AGED 65 YEARS
S/O. KRISHNAN ASARI, ALUVILA VEEDU, NEAR GHS, VARKALA VILLAGE AND
DESOM, THIRUVANANTHAPURAM DISTRICT - 695001,
BY ADV LATHEESH SEBASTIAN
RESPONDENTS/RESPONDENTS 2 TO 7/PLAINTIFFS 2 TO 4:
1 UNNI
S/O. VELAPPAN ASARI,AGED 57 YEARS, NOW RESIDING AT KULANGARA
VILAKOM VEEDU, KALIPPAINKULAM, THIRUVANANTHAPURAM FROM ALUVILA
VEEDU, NEAR GHS VARKALA, VARKALA VILLAGE, VARKALA P.O.,
THIRUVANANTHAPURAM DISTRICT - 695141,
2 RAMACHANDRAN ASARI
AGED 75 YEARS
S/O. CHELLAPPAN ASARI, KULANGARA VILAKOM VEEDU, KALIPAINKULAM,
THIRUVANANTHAPURAM - 695009.
3 GOPI ASARI
AGED 69 YEARS
S/O. CHELLAPPAN ASARI, IB/31, 3RD FLOOR, KRISHA BUILDING, LINK
ROAD, BHAGAT SINGH NAGAR, GOREGOAN, MUMBAI - 400104.
*4 SARASWATHY
AGED 59 YEARS
W/O. THANKAPPAN ASARI, AGED 59 YEARS, VILAYIL VEEDU, KAVALAYOOR
DESOM, MANAMBOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695144.
[DIED. RESPONDENTS 5 AND 6 ARE RECORDED AS LEGAL HEIRS OF DECEASED
R4 AS PER ORDER DATED 26/08/2022 IN MEMO DATED 25.08.2022 IN RSA
862/2020].
5 SYAMLAL
AGED 33 YEARS
S/O. THANKAPPAN ASARI, VILAYIL VEEDU, KAVALAYOOR DESOM, MANAMBOOR
VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695144.
6 SANJEEV
AGED 31 YEARS
S/O. THANKAPPAN ASARI, VILAYIL VEEDU, KAVALAYOOR DESOM, MANAMBOOR
VILLAGE, THIRUVANANTHAPURAM DISTRICT - 695144.
BY ADVS.
K.P.SANTHI
TARA PREM
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 31.08.2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
R.S.A.No.862/2020
2
JUDGMENT
The Regular Second Appeal has been directed against the
judgment and decree passed in A.S.No.39/2017 on the file of
Subordinate Judge's Court, Attingal, which arose out of the
judgment and decree in O.S.No.5/2013 on the file of Munsiff's
Court, Varkala.
2. The defendants are the appellants. The suit was one
for eviction and recovery of possession. Parties would
hereinafter be referred as per their status before the trial court.
3. Plaintiffs and first defendant are siblings. Second
defendant is the husband of the first defendant. Plaintiffs
obtained the plaint schedule property as per Gift Deed
No.2406/1984 of Sub Registry Office, Varkala. The plaint B
schedule property is the building situated in plaint A schedule
property. Defendants have no manner of right over plaint A and
B schedule properties. On 25.08.1996 defendants along with two
others attempted to trespass into plaint A schedule property and
R.S.A.No.862/2020
thereupon O.S.No.225/1996 was filed seeking for an injunction.
That suit was decreed in favour of the plaintiffs. A.S.No.83/1998
filed against the judgment and decree was dismissed and it has
become final. On 01.08.2008 defendants trespassed into a
portion of building and started residence there. Thereafter,
plaintiffs filed petition to prosecute the defendants for violating
the decree in O.S.No.225/1996. That petition happened to be
dismissed, against which, O.P.(C)No.1243/2010 was filed.
Defendants, after trespass to B schedule, damaged a portion of
kitchen and veranda. Defendants are having house at
Kudappanakkunnu. The second plaintiff's family is residing in
the plaint schedule building. Hence, the suit.
4. Defendants filed written statement denying the right
and title of the plaintiffs over plaint schedule properties. Plaint
schedule property is in the occupation of the defendants and
their family. The plaintiffs got the Gift Deed executed exerting
undue influence upon the mother. The description of the plaint B
schedule is incorrect. Defendants never violated the order in
O.S.No.225/1996. E.P.No.49/2007 and E.A.No.105/2008 was
dismissed after hearing both parties. First defendant is born and
brought up in the plaint schedule property and after her
R.S.A.No.862/2020
marriage the second defendant is also residing with her. They
have not caused any damage to any portion of the building as
alleged. Plaintiffs are not residing in the plaint schedule property
and they are residing at Kalippankulam near Manakkadu. First
and 4th plaintiffs are residing at Manamboor and Mumbai
respectively. Plaintiffs are not having any title or possession
over the plaint schedule properties.
5. PWs 1 and 2 examined and Exts.A1 to A6 marked from
the side of the plaintiffs. DW1 examined and Exts.B1 to B13
marked from the side of the defendants.
6. The learned Munsiff on evaluating the facts,
circumstances and evidence found that plaintiffs proved their
right and title over the plaint schedule properties and entitled
for recovery of possession of plaint B schedule property. Against
the judgment and decree passed by the learned Munsiff,
A.S.No.39/2017 was filed before the Sub Court, Attingal. The
learned Sub Judge on re-appreciating the facts and
circumstances and evidence confirmed the judgment and decree
passed by the trial court and dismissed the appeal.
7. Having lost before the two forums, appellants
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approaches this Court in this Regular Second Appeal.
8. Notice was issued to the respondents and both sides
were heard.
9. Learned counsel for the appellants would contend that
Exts.B1 and B2 produced from the side of the defendants would
prove the defendants' possession of the property even at the
time of filing of the suit and non-consideration of Exts.B1 and B2
has caused serious prejudice to the defendants. In
O.S.No.225/1996 also defendants contended that they are in
possession of the property and finding their possession Exts.B1
and B2 orders were passed.
10. Defendants were in possession of the property even at
the time of filing of O.S.No.225/1996 and the present suit has
been filed only on 03.01.2013 after 16 years of continuous
uninterrupted hostile possession of the defendants and hence
appellants prescribed title by adverse possession though it is not
specifically pleaded.
11. The plaint schedule property was obtained by the
plaintiffs as per Gift Deed No.2406/1984, the attested copy of
which is produced and as Exts.A4. Plaint B schedule building
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admittedly is situated in plaint A schedule property. Ext.A5 is the
tax receipt, which would prove that plaintiffs effected mutation
and paid tax with respect to plaint A schedule property. The
specific case of the plaintiffs is that when an attempt was made
by the defendants to trespass into plaint A and B schedule
properties on 25.08.1996 O.S.No.225/1996 was filed for
permanent injunction against trespass into the plaint schedule
properties and forcefully taking usufructs or committing any acts
detrimental to the ownership and possession of the plaintiffs
over plaint schedule property and further from committing any
obstruction to the plaintiffs' residence in the building situated in
the plaint schedule property. That suit was decreed. Ext.A1 is the
copy of the judgment in O.S.No.225/1996 and Ext.A2 is the
attested copy of the decree in that case. Ext.A3 is the attested
copy of the decree in A.S.No.83/1998. So Exts.A1 to A3 would
prove the plaintiffs possession over plaint schedule property.
Though it has been contended by the learned counsel for the
defendants that Exts.B1 and B2 would prove that the defendants'
possession over the plaint schedule properties, the specific case
of the plaintiffs is that on 01.08.2008 defendants trespassed into
a portion of the building and started residence there and in
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pursuance of the same they filed petition for prosecuting the
defendants for violating the decree of injunction. Though that
was dismissed they alleged to have filed O.P.(C)No.1243/2010. It
is subsequent to that the present suit has been filed. The
judgment and decrees, Exts.A1 to A3, would prove concurrently
the plaintiffs' possession over the plaint schedule property and
defendants were restrained from trespassing into the plaint
schedule property.
12. Plaintiffs relied on Ext.A4 Gift Deed executed by their
mother in their favour on 05.06.1984 bequeathing 6 Ares of
property in Survey No.1015/A/9 in favour of the plaintiffs out of
love and affection. Subsequently, mutation was effected. Ext.A5
tax receipt would substantiate that fact. So, as has been
concurrently found by the courts below, the defendants have no
subsisting right over the plaint B schedule property. It has also
come out from the evidence of first defendant that she had filed
O.S.No.184/1996 to set aside Ext.A4 Gift Deed and that was
dismissed. So the earlier attempt made by the first defendant to
challenge the Gift Deed executed by the mother in favour of the
plaintiffs also ended in vain. The decree passed in the favour of
the plaintiffs in O.S.No.225/1996 which is subsequently
R.S.A.No.862/2020
confirmed in A.S.No.83/1998 would prove the right and
possession of the plaintiffs over the plaint schedule property.
Though the subsequent execution petition filed by the plaintiffs
against the defendants for violation of the injunction decree
ended in dismissal, it is alleged to have been challenged by filing
Original Petition before this Court. Moreover, the dismissal of
execution petition to prosecute the defendants for violation of
decree itself will not confer any right or title upon the
defendants over the decree scheduled properties. Even though
the defendants have got a specific contention that the first
defendant has been residing in the plaint schedule property right
from her birth and the second defendant is residing with her
from the date of her marriage, they could not establish any legal
right to occupy the plaint schedule property after the execution
of the gift by the mother in favour of the plaintiffs and Ext.A5 tax
receipt also would prove that the plaintiffs mutated the property
in pursuance of the gift deed and is paying tax with respect to
the property gifted to them.
13. A contention has been advanced by the learned
counsel for the defendants that due to the dismissal of the
earlier suit O.S.No.225/1996 a subsequent suit is barred as per
R.S.A.No.862/2020
Order 2 Rule 2 of the Code of Civil Procedure. But admittedly the
first suit was one for injunction. The specific case of the plaintiffs
is that they were in possession of the plaint schedule property
and that has been substantiated by a decree passed in their
favour and which was confirmed in the first appeal and that was
not further challenged. Plaintiffs have also got a specific case
that subsequent to the decree on 01.08.2008 the defendants
trespassed into plaint B schedule property and started residence
there and thereupon the present suit was filed seeking for
eviction as well as recovery of possession. So when
O.S.No.225/1996 was filed the defendants were not in possession
of the plaint schedule property so as to seek relief of eviction or
recovery of possession. Order 2 Rule 2 of CPC provides that
every suit shall include the whole of the claim which the plaintiff
is entitled to make in respect of the cause of action; but a
plaintiff may relinquish any portion of his claim in order to bring
the suit within the jurisdiction of any Court. Sub-rule (2) of Rule
2 of Order 2 further provides that when a plaintiff omits to sue in
respect of, or intentionally relinquishes, any portion of his claim
he shall not afterwards sue in respect of the portion so omitted
or relinquished.
R.S.A.No.862/2020
14. Here, when the first suit was filed the apprehension is
only trespass into the plaint schedule property and only after
passing of decree the defendants alleged to have forcefully
trespassed into a portion of plaint schedule property which has
been separately scheduled as B schedule. Hence when
O.S.No.225/1996 was filed there was no cause of action for filing
the suit for recovery of possession or eviction. So the bar under
Order 2 Rule 2 will not apply in the filing of the present suit due
to the filing of O.S.No.225/1996. So the contention so raised by
the learned counsel is not sustainable in law. Though a
contention of adverse possession and limitation has been raised
in the second appeal, admittedly, there is no such pleading in the
written statement and no issue also raised in that regard.
15. In Harihar Sahu v. State of Orissa and Anr [2017 KHC
4584] it has been held that a person who claims adverse
possession should show (a) on what date he came into
possession, (b) what was the nature of his possession, (c)
whether the factum of possession was known to the other party,
(d) how long his possession continued and (e) his possession was
open and undisturbed. In Krishnamurthy S Setlur Dead by LRs v.
O.V. Narasimha Shetty and Ors [2007 (3) SCC 569] it has been
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held that plaintiff must plead and prove the date on and from
which he claims to be in exclusive, continuous and undisturbed
possession and also that such possession was actual and to the
knowledge of the real owner. So in the fact situation of this case
admittedly by the appellants the plea of adverse possession was
not specifically taken either in the written statement or during
evidence. So the appellants/defendants cannot raise a plea of
adverse possession during this stage.
16. Though the defendants contended to be in continuous
uninterrupted possession of the plaint schedule properties right
from the birth of the first defendant, no document proving their
title over the schedule property has been produced by the
defendants. Exhibits produced from the side of the defendants
would include ration card, copy of the voters list, extract of
admission register. Though ration card, extract of admission
register, attested copy of election I.D.Card etc are produced
admittedly the first defendant is a sibling of the plaintiffs and all
the parties might have been born and brought up in the same
house and the specific case of the plaintiffs is that by virtue of
Ext.A4 gift deed the mother gifted the property in favour of the
plaintiffs and in pursuance of the same they mutated property
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and paid tax also. So the production of ration card or copy of the
school admission register or I.D. Card etc. will not in anyway
prove any right or title to the defendants over plaint B schedule
building.
17. On evaluating the entire facts and circumstances and
evidence, I am of the view that courts below have concurrently
found the plaintiffs right and title over the plaint schedule
properties as per Ext.A4 gift deed executed by the mother. The
defendants have no manner of right over the plaint B schedule
property. So the eviction and recovery of possession ordered by
the courts below are perfectly legal and proper. I do not find any
substantial question of law emerging for consideration for
entertaining this appeal. Hence appeal is found to be devoid of
any merit and is liable to be dismissed.
18. The learned counsel for the defendants would contend
that the case stand posted for delivery before the trial court and
defendants should be given a breathing time for finding out an
alternate accommodation and sought for six months time for
vacating from plaint B schedule building. Learned counsel for
plaintiffs though requested to restrict the period to four months,
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further did not press for restricting the period and hence six
months time is granted to the defendants for vacating plaint B
schedule building.
In the result, appeal dismissed without cost and the
appellants/defendants are given six months time to vacate the
plaint B schedule building. The defendants shall file an
undertaking affidavit before the execution court within one
month agreeing to vacate the plaint B schedule building within
six months starting from 31.08.2022. If the defendants did not
vacate the premises within the time stipulated, plaintiffs can
continue with the delivery proceedings.
Sd/-
M.R.ANITHA
shg JUDGE
