Kerala High Court
Abdul Hameed Rawther vs Basheer on 12 April, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
FRIDAY, THE 12TH DAY OF APRIL 2024 / 23RD CHAITHRA, 1946
RSA NO. 1082 OF 2015
AGAINST THE JUDGMENT DATED 9.6.2015 IN AS NO.50 OF 2009 OF
DISTRICT COURT,PATHANAMTHITTA ARISING OUT OF THE JUDGMENT
DATED 31.1.2009 IN OS NO.500 OF 2005 OF MUNSIFF
COURT,PATHANAMTHITTA
APPELLANT/APPELLANT/PLAINTIFF:
ABDUL HAMEED RAWTHER
S/O MYTHEEN PICHA RAWTHER, AGED 72 YEARS,
KALARNILKKUNNATHIL HOUSE,MANGARAM MURI &
VILLAGE, KONNI, PATHANAMTHITTA DIST
BY ADVS.
SRI.T.K.BIJU (MANJINIKARA)
SMT.ANNIE M.ABRAHAM
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 BASHEER
KALARNIKKUNNATHIL HOUSE, MANGARAM MURI &
VILLAGE,KONNI, PRESENTLY AT PARAYIRIKKUNNATHIL
VEEDU,PANDALAM MURI & VILLAGE, PATHANAMTHITTA
DISTRICT-689 501
2 ALIF BASHEER
KALARNIKKUNNATHIL HOUSE, MANGARAM MURI &
VILLAGE, KONNI, PRESENTLY AT PARAYIRIKKUNNATHIL
VEEDU, PANDALAM MURI & VILLAGE, PATHANAMTHITTA
DISTRICT-689 501
3 KAMARUDHEEN
THENGUMMOODU, PEEDIKAYIL, KONNI, NOW AT
KALARNIKKUNATHIL HOUSE, MANGARAM MURI &
VILLAGE, KONNI, PATHANAMTHITTA DISTRICT-689 691
BY ADVS.
SRI.JACOB P.ALEX
SRI.JOSEPH P.ALEX
MANU SANKAR P.(K/000823/2018)
AMAL AMIR ALI(K/000773/2019)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALL HEARD
ON 4.4.2024, THE COURT ON 12.04.2024 DELIVERED THE
FOLLOWING:
RSA.1082/2015
2
'CR'
JUDGMENT
Dated this the 12th day of April, 2024
This second appeal has been preferred by the appellant in AS
No.50 of 2009 on the file of the District Judge, Pathanamthitta, who
is the plaintiff in O.S.No.500 of 2005 on the file of the Munsiff
Court Pathanamthitta, against the judgment dated 9.6.2015
dismissing the above appeal.
2. The appellant filed the above suit for declaration of title,
fixation of boundaries, recovery of possession and injunction. The
case of the appellant is that he obtained plaint schedule item No.1
property consisting of 12 cents comprised in Sy No.384/16 of Konni
Village as per Exhibit A1 partition deed No.525/1956 and item
No.2, six cents and more property comprised in the very same
Survey number as per Exhibit A2 Sale Deed No.2719/77. Though
as per Exhibit A2, he had purchased 12 cents, the remaining six
cents was re-conveyed to the seller and as such he is in absolute
possession and enjoyment of 18 cents of property. The 1 st
respondent is the nephew of the appellant. The 2 nd respondent is the
son of the 1st respondent. The 3rd respondent is the intending
purchaser of the above property from respondents 1 and 2. As per
Exhibit A1 partition deed, the appellant's brother, namely the father
of the 1st defendant obtained six cents of property and the same was
settled by him in favour of the 1st respondent as per Exhibit A3
settlement deed No.2141/1991. Subsequently, as per Exhibit A4
settlement deed No.483/2005, the 1st respondent settled the above
property in favour of the 2nd respondent. However, in Exhibit A4,
the extent of the property is shown as 10.500 cents, instead of 6
cents.
3. According to the appellant, there was no clear demarcating
boundaries separating the plaint schedule item Nos.1 and 2
properties. In the year 2000, the respondents 1 and 2 brought a lorry
load of granite into the plaint schedule item No.1 property with the
permission of the appellant, on the guise of renovating the
residential building. Thereafter, they have arranged the granite
inside the plaint schedule item No.1 property in line and thereafter
claimed right over a portion of plaint schedule item No.1 property
lying on the southern side of the above granite wall, forcefully taken
possession of the above portion and attempted to alienate their
property including the above portion. The above portion of
appellants property annexed by the respondents having an extent of
41/2 cents is scheduled as item No.3. In the suit the appellant sought
for declaration of title over the plaint schedule item No.3, fixation of
boundary of the appellant's property, recovery of possession of item
No.3 property as well as a prohibitory injunction.
4. The Trial Court found that the defendants constructed a
residential building and started residing therein inside the plaint
schedule item No.3 property since the year 1973-74 and perfected
their title over the above property by adverse possession and
limitation and thereby dismissed the suit. The First Appellate Court
confirmed the above finding of the trial court. Aggrieved by the
above concurrent findings of the trial court as well as the First
Appellate Court, the plaintiff in the suit preferred this second appeal
raising various grounds.
5. As argued by the learned counsel for the respondents, the
jurisdiction of the High Court to decide the Second Appeal is
confined only to substantial questions of law and the High Court
cannot interfere with the concurrent findings on questions of fact.
(Syeda Rahimunnisa v. Malan Bi (dead) by legal representatives
and another [(2016) 10 SCC 315] and Ramathal and Ors v. K.
Rajamani (Dead) through LRs and Ors [AIR 2023 SC 3978].
6. At the time of admission, this Court formulated certain
substantial questions of law. However, at the time of arguments,
after hearing both sides, this Court found it necessary to reformulate
the questions of law involved in the case as follows:
1. Whether the defendants/respondents can claim title as
well as prescriptive title at the same time?
2.Whether the trial court was justified in finding that the
appellant lost title over item No.3 property by adverse
possession and limitation, without framing a specific
issue in that respect?
3. Whether the First Appellate Court was justified in
dismissing the amendment application (IA.
No.303/2015)?
7. Heard both sides on the above re-formulated questions of
law, extensively.
8. The trial court as well as the First Appellate Court found
that the defendants are in exclusive possession and enjoyment of
plaint schedule item No.3 property consisting of 4.50 cents along
with another six cents, having a total extent of 10.500 cents,
constructed a residential building therein as early as in the year
1973-74 and ever since thereafter they are residing therein. The trial
court as well as the First Appellate Court found that the appellant
lost title over the plaint schedule item No.3 property by adverse
possession and limitation and that the respondents 1 and 2 have
acquired prescriptive title over the above property.
9. It was argued by the learned counsel for the appellant that
the respondents have claimed title over plaint schedule item No.3
property and at the same time they have also claimed prescriptive
title over the very same property. Therefore, it was further argued
that the conduct of the respondents in taking two contradictory
contentions cannot be entertained.
10. On the other hand, the learned counsel for the respondent
would argue that they have claimed ownership only over six cents of
property and that with respect to item No.3 property, they have
claimed only prescriptive title and as such their claim is not at all
contradictory to each other. He would further argue that the
respondents started enjoying the plaint schedule item No.3 property
adverse to the interest of the appellant continuously and
uninterruptedly as of right since 1986 and as such by the time the
suit was filed in the year 2005 they have acquired prescriptive title
over the above property. He would further argue that even if it is
assumed that they have claimed right of ownership as well as
prescriptive title over the same property, it is not barred under law.
11. In Exhibit A4 Settlement Deed in favour of the 2nd
respondent, though the total extent of property is mentioned as
10.500 cents, it is specifically stated therein that as per prior deeds,
they had obtained only six cents and as per the re-survey records, the
extent of property is 101/2 cents.
12. In the written statement, the respondents have contended
that there were two streams passing through southern and western
boundaries of their property and a portion of the same was annexed
to their property and as per re-survey records, the extent of property
in their possession is 4.30 Ares. From the above description of
property given in Exhibit A4 as well as written statement, it can be
seen that over the plaint schedule item No.3 property, the defendants
are claiming only prescriptive title and not jenmam right.
13. In the decision in Kerala State and Ors v. Brijit and
Others. [2018 (2) KHC 521], a Single Bench of this Court held that
there is nothing wrong for a party to claim title and in the alternative
prescriptive title by adverse possession and limitation. In paragraph
54, the learned Single Judge held that:
54. ....... ..... ...... Exclusive possession of the thing
owned and the right to exclude others from possession are
two essential components in the bundle of rights called
"title" or "ownership". In other words, every owner has a
right to possess property in exclusion of all the others.
Every person holding property under a claim of adverse
possession keeps possession of the same with a hostile
animus to exclude all others, including the true owner.
Therefore, both in a claim of ownership and adverse
possession, assertive possession is an essential component.
In the case of a person claiming adverse title by
prescription, he must have been holding possession with an
open hostile animus for the prescribed period. Therefore, I
find no reason to think that there is any impediment in
claiming ownership of property and in the alternative, a
prescriptive title to it by adverse possession and limitation."
14. In the light of the above decision, it can be held that even
if a person claims ownership over a property along with prescriptive
title in the alternative, the claim is sustainable. On the other hand, in
this case, as I have noted above, no such rival contentions were
raised by the respondents.
15. The next substantial question of law which arose for
consideration is, whether the omission of the trial court to frame a
specific issue regarding the respondents' claim of adverse possession
and limitation over plaint schedule item No.3 property is fatal in the
facts of this case? It is true that the trial court has not raised any
specific issue with regard to the claim of respondents that they have
acquired prescriptive title over item No.3 property by adverse
possession and limitation. However, in the written statement, they
have raised specific pleadings to that effect. In the judgment of the
trial court, there is specific finding to the effect that the respondents
have acquired prescriptive title over plaint schedule item No.3
property by adverse possession and limitation.
16. On a perusal of the evidence adduced by both sides, it can
be seen that the appellant was well aware of the above contention
raised by the respondents in their written statement. The parties
have also adduced evidence supporting and opposing the above
claim of the respondents. In the memorandum of appeal filed before
the First Appellate Court as well as before this Court, the appellant
has not raised any specific contention that failure of the trial court in
framing such an issue has caused any prejudice to him. In the facts
and circumstances of this case, it can be seen that the omission to
frame a specific issue in that respect has not in any way caused any
prejudice to the appellant. On the other hand, both parties had
sufficient knowledge about the above issue and adduced evidence
covering that issue also.
17. In the decision in Sayeda Akhtar v. Abdul Ahad
[(2003) 7 SCC 52], the Hon'ble Supreme Court held that if the
parties were well familiar with the existence of an issue, evidence
was adduced on that issue and no prejudice was caused to the
parties, failure to frame an issue is not fatal.
18. In the decision in Ram Sahu (Dead) Through Lrs and
Ors. vs. Vinod Kumar Rawat [(2021) 13 SCC 1] also the Hon'ble
Supreme Court has dealt with the failure of the trial court to frame
specific issue and its consequence. The Hon'ble Supreme Court in
paragraph 11.1 of the above judgment held as follows:
11.1. Even otherwise non-framing of the issue with respect to
possession would have no bearing and/or it fades into
insignificance. It is required to be noted that there were necessary
pleadings with respect to possession in the plaint as well as in the
written statement. Even the parties also led the evidence on the
possession. The original plaintiff - appellant herein led the evidence
with supporting documents to show his possession and to that, there
was no cross-examination by the defendants - respondents. The
defendants- respondents did not lead any evidence to show their
possession. Therefore, the parties were aware of the rival cases. On
a holistic and comprehensive reading of the pleadings and the
deposition of PW1 and PW2, it is unescapable that the plaintiff had
intendedly, directly and unequivocally raised in its pleadings the
question of possession. As observed hereinabove even in the written
statement, the defendants also made an averment with respect to
possession. Thus neither prejudice was caused nor the proceedings
can be said to have been vitiated for want of framing the issue. As
observed and held by this Court in the case of Sri Gangai Vinayagar
Temple Vs. Meenakshi Ammal and Others (Supra), if the parties are
aware of the rival cases, the failure to formally formulate the issue
fades into insignificance when an extensive evidence has been
recorded without any demur. Even the observations made by the
High Court that there was no issue with respect to possession before
the Learned Trial Court and/or even before the High Court is not
correct. As observed hereinabove in the pleadings in the plaint and
even in the written statement filed by the defendants, there were
necessary averments with respect to possession. Even the parties
also led the evidence on possession.
19. In the decision in Swamy Atmananda and Ors. v. Sri
Ramakrishna Tapovanam and Ors [(2005) 10SCC 51], the
Hon'ble Supreme Court held that:
"If the parties went to the trial knowing fully well the real
issues involved and adduced evidence in such a case, without
establishing prejudice, it would not be open to a party to raise
the question of non-framing of a particular issue."
20. A similar view was taken by the Apex Court in Gulf Oil
Corporation Ltd. v. The State of Telangana and Ors.
[MANU/SC/1155/2022]. From the above decisions also it can be
seen that if the parties were aware of the issues and evidence was
adduced on the issue and if no prejudice is caused, failure to frame
specific issue is not fatal.
21. It was argued by learned counsel for the appellant that
there was no clear and demarcating boundaries separating the
properties of appellant and respondents and as such it was not
possible for the respondent to claim prescriptive title by adverse
possession and limitation. He would also argue that both parties
obtained respective properties from a common ancestor and as such
the respondents are disentitled from claiming prescriptive title over
item No.3 property by adverse possession and limitation. He has
also relied on certain decisions in support of his above argument.
22. In the decision in Annasaheb Bapusaheb Patil and
Others v. Balwant alias Balasaheb Babusaheb Patil (dead) by
LRs and heirs [1995 KHC 799], relied upon by learned counsel for
the appellant, the Hon'ble Supreme Court held that:
"13.Where possession could be referred to a lawful title, it
will not be considered to be adverse. The reason being that a
person whose possession can be referred to a lawful title will
not be permitted to show that his possession was hostile to
another's title. One who holds possession on behalf of another,
does not by mere denial of that other's title make his
possession adverse so as to give himself the benefit of the
statute of limitation. Therefore, a person who enters into
possession having a lawful title, cannot divest another of that
title by pretending that he had no title at all."
23. In support of the argument that alternate pleas cannot be
raised in a suit claiming adverse possession, the learned counsel for
the appellant relied upon the decision in Chandramathy C.S. and
others v. Devakey Amma and Others [2010 (4) KHC 383]. In the
above decision, the defendants canvassed permissive possession on
the basis of an oral agreement of sale. In the above context, the
Court held that permissive possession is not at all adverse and
limitation does not commence until possession become adverse.
The defendants have not stated as to when permissive possession
became adverse to the real owner. It was in the above context, the
court held that the plea based on title and adverse possession are
inconsistent with each other.
24. In the decision in Valsalan and Others v. Sivadas and
Others [2021 KHC 5375], in a suit for partition, one of the co-
owners claimed adverse possession against the other. In the said
decision, in paragraph 11, the Single Judge held that:
"11. It is well-settled law that in order to establish adverse
possession against one co-owner as against another, it is not
enough to show that one out of them is in sole possession and
enjoyment of the profit, of the properties. Ouster of non-
possessing co-owner by the co-owner in possession who
claims his possession to be adverse, should be made out. The
possession of one co-owner is considered in law, as
possession of all the co-owners. When one co-owner is found
to be in possession of the properties, it is presumed to be on
the basis of joint title. The co-owner in possession cannot
render his possession adverse to the other co-owner not in
possession merely by secret hostile animus on his own part in
derogation of the other co-owner's title. It is settled rule of
law that as between co-owners, there must be evidence of
open assertion of hostile title, coupled with exclusive
possession and enjoyment by one of them to the knowledge of
the other so as to constitute ouster."
25. The law is well settled that the plea of adverse possession
can be raised only against the property owned by another person
against whom he asserts possession adverse to the title of the other
(Raghavan v. Devayani [2024 (2) KHC 417] and Shri Uttam
Chand (D) through LRs. v. Nathu Ram (D) through LRs. and
Others [2020 KHC 6034]).
26. The ingredients necessary to claim prescriptive title by
adverse possession and limitation was summarised by the Hon'ble
Supreme Court in the decision in Ravinder Kaur Grewal and
Others v. Manjit Kaur and Others [AIR 2019 SC 3827]. In
paragraph 57, the Hon'ble Supreme Court held that:
"57. The adverse possession requires all the three classic
requirements to co-exist at the same time, namely, nec-vi i.e.
adequate in continuity, nec-clam i.e., adequate in publicity
and nec-precario i.e. adverse to a competitor, in denial of title
and his knowledge. Visible, notorious and peaceful so that if
the owner does not take care to know notorious facts,
knowledge is attributed to him on the basis that but for due
diligence he would have known it. Adverse possession cannot
be decreed on a title which is not pleaded. Animus possidendi
under hostile colour of title is required. Trespasser's long
possession is not synonym with adverse possession.
Trespasser's possession is construed to be on behalf of the
owner, the casual user does not constitute adverse possession.
The owner can take possession from a trespasser at any point
in time. Possessor looks after the property, protects it and in
case of agricultural property by and the large concept is that
actual tiller should own the land who works by dint of his
hard labour and makes the land cultivable. The legislature in
various States confers rights based on possession."
27. In the instant case, the appellant and the respondents
obtained their property from a common ancestor. However, the
properties were partitioned as per Exhibit A1 partition deed as early
as in the year 1956. On partition, their respective shares have
crystallized and thereafter they are not co-owners. Therefore, the
contention of the appellant that possession of plaint schedule item
No.3 property by the respondents is not hostile to the ownership of
the appellant cannot hold good.
28. From Exhibit X1 and X2 Building Tax Assessment
Register, it is proved that since the year 1973-74, there is a
residential building in respondents' property. From Exhibit C1
Commission report and C1(b) sketch, it can be seen that the southern
boundary of the appellant's property passes through the middle
portion of the residential building, in which the respondents are
residing. Though during the cross examination, DW1 stated that
after the execution of Exhibit A4, the residential building was
extended using sheet, the exact location of the above extension was
not brought out in evidence.
29. On the other hand, from Exhibit X1 and X2, it is revealed
that there was a residential building having three rooms since the
year 1973-74 in existence in which the respondents, in continuation
of their predecessor, were residing. DW4, the local Panchayat
Member, had deposed that about 20 years before date of his
examination on 24.1.2009, he had interfered in the dispute between
the appellant and respondents, that he had demarcated the boundary
between their properties in between the respective residential
buildings and that, along that boundary the respondents have
constructed a compound wall. The above evidence of DW4 is not
seen challenged during the cross examination.
30. In the plaint, the appellant admitted the existence of a
granite wall along the northern side of the existing residential
building occupied by the respondents. According to them, it was
constructed by the respondents in the year 2000. However, from
the evidence of DW4, it is revealed that the said compound wall was
constructed about 20 years before the date of his examination on
24.1.2009. The above evidence of DW4, which remains
unchallenged, substantiates the contention of the respondents that
they have been in exclusive possession and enjoyment of plaint
Schedule item No.3 property by constructing a residential building
therein since the year 1973-74 and that they were in hostile
possession of the said property since 1986.
31. In the above circumstances, the finding of the trial court
and the First Appellate Court that the appellant lost his title over the
plait schedule item No.3 property by adverse possession and
limitation and also that the respondents acquired prescriptive title
over the said property is perfectly valid. I do not find any irregularity
or illegality in the above finding, so as to call for any interference.
32. Before the First Appellate Court, the plaintiffs filed I.A.
No.303/2015 for amending the plaint, to correct the extent of
property in the possession of the plaintiff from 18 to 19 cents. After
hearing both sides, the First Appellate Court dismissed the above
amendment application. The scope of amendment under Order VI
Rule 17 of Code of Civil Procedure was elaborately discussed and
enumerated by the Hon'ble Supreme Court in Life Insurance
Corporation of India v. Sanjeev Builders Private Limited and
Another [2022 (5) KLT OnLine 1119 (SC)].
33. The specific case of the appellant is that as per Exhibit A1
partition deed he had obtained 12 cents of property and another 12
cents of property was obtained from his brother as per Exhibit A2
sale deed. According to him, out of the 12 cents purchased from his
brother, six cents was re-conveyed to his brother. Therefore,
according to the plaintiff, the balance property available with him is
only 18 cents. In the above circumstances, the First Appellate Court
was justified in dismissing the application to amend the plaint to
correct the extent of his property from 18 cents to 19 cents.
34. As I have already noted above, the failure to raise a
specific issue regarding adverse possession and limitation has not in
any way prejudiced the appellant. The respondents also have not
claimed title over item No.3 property along with prescriptive title
and as such the findings on questions of laws 1 and 2 does not in any
way affect the decisions of the trial court and First Appellate Court.
35. In the light of the findings on substantial questions of
law discussed above, it can be seen that there is no irregularity or
illegality in the impugned judgment of the First Appellate Court in
AS. No.50 of 2009 and as such the Regular Second Appeal is liable
to be dismissed.
In the result, the RSA is dismissed. Considering the facts, I
direct the parties to bear their respective costs.
Sd/-
C. PRATHEEP KUMAR,
JUDGE
sou.
