Kerala High Court
Radhamma vs Aravindakshan on 7 May, 2024
Author: T.R. Ravi
Bench: T.R.Ravi
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 7TH DAY OF MAY 2024 / 17TH VAISAKHA, 1946
RSA NO. 311 OF 2017
AGAINST THE JUDGMENT AND DECREE DATED 31.08.2016 IN AS NO.134
OF 2014 OF IV ADDITIONAL DISTRICT COURT, THRISSUR ARISING OUT
OF THE JUDGMENT AND DECREE DATED 11.03.2014 IN OS NO.74 OF 2011
OF ADDITIONAL SUB COURT, IRINJALAKUDA
APPELLANTS/APPELLANTS 1, 2, 4/DEFENDANTS 1, 2, 4:
1 RADHAMMA
D/O PUZHAMKARAVEETTIL KUNJUIKKAVU AMMA,
KARUKUTTY, KALLUR VADAKKUMMURI VILLAGE/PO:680317,
MUKUNDAPURAM TALUK.
2 THULASI
D/O PUZHAMKARAVEETTIL KUNJUIKKAVU AMMA,
KARUKUTTY, KALLUR VADAKKUMMURI VILLAGE/PO:680317,
MUKUNDAPURAM TALUK.
3 AJAY @ KUTTAN
S/O PUZHAMKARAVEETTIL THULASI,
KARUKUTTY, KALLUR VADAKKUMMURI VILLAGE/PO:680317,
MUKUNDAPURAM TALUK.
BY ADV SRI.K.G.BALASUBRAMANIAN
RESPONDENTS/RESPONDENTS 1-10, ADDITIONAL APPELLANTS 5,
6/PLAINTIFFS 1, 3 TO 8, ADDITIONAL PLAINTIFFS 9 TO 11:
1 ARAVINDAKSHAN
S/O PUZHAMAKARAVEETTIL LAKSHMYKUTTYAMMA,
KARUKUTTY, KALLUR VAAKKUMMURI VILLAGE/PO:680317,
MUKUNDAPURAM TALUK
(PRESENT ADDRESS:NO:453, LORONG, KAS KAS 113/2,
TAMAN, TELUK INTAN, 36000, PERAK, MALAYSIA.
2 JAYENDRAN
S/O -DO-, PRESENT ADDRESS:NO.7,
JALAN, USJ 23/5B, 47620, SUBANG JAYA,
SELANGORE, MALAYSIA.
3 PADMINI
D/O -DO-, PRESENT ADDRESS:NO.3,
RSA NO. 311 OF 2017 2
JALAN, SS 1/22B 47300, PETALING JAYA,
SELANGORE, MALAYSIA
4 VENUGOPAL
S/O -DO-, PRESENT ADRESS:NO. 58,
JALAN, TERASEK, BANGSAR, BARU, 59100,
KUALALUMPUR, MALAYISA, MALAYSIA
5 BHASKARAN
-DO-, PRESENT ADDRESS:NO.5,
JALAN, SS 3/98, 47300, PETALLING JAYA,
SELANGORE, MALAYSIA.
6 SARALADEVI
D/O -DO-, NO:145G, LORONG, PANJANG,
75000, MELAKA, MALAYSIA
7 INDIRA DEVI
D/O -DO-, NO:73, JALAN, PIMPINGKIRI,
UKAY HEIGHTS, 68000, AMPANG,
SELANGORE, MALAYSIA
8 SARASWATHI NAIR
W/O PUZHANKARA SURENDRAN,
NO:17, JALAN, 3/3, BANDAR BARU,
SELAYANG -68100, BARU CAVES,
SELANGOR DE, MALAYSIA
9 USHA SURENDRAN
D/O -DO-, NO:17, JALAN, 3/3,
BANDAR BARU, SELAYANG 68100,
BARU CAVES, SELANGOR DE, MALAYSIA
10 MOHAN
S/O -DO-, NO.17, JALAN, 3/3,
BANDAR BARU, SELAYANG-68100,
BARU CAVES, SELANGOR DE, MALAYSIA
11 MAYA,
W/O.LATE MADHU AND D/O.GOVINDANKUTTY,
VADAVATTATH HOUSE, ANNALLOOR P.O. 680 731, THRISSUR
DISTRICT. *DIED LRs RECORDED
*IT IS RECORDED THAT R11 IS NO MORE AND HER LEGAL
HEIR IS ALREADY ON THE PARTY ARRAY AS R12 AS PER
ORDER DATED 21.10.2021 IN MEMO DATED 16.09.2021
RSA NO. 311 OF 2017 3
12 ATHIRA,
D/O.LATE MADHU,
VADAVATTATH HOUSE, ANNALLOOR P.O.-680 731, THRISSUR
DISTRICT.
THE ADDRESS OF R12 IS INCORPORATED AS
PRESENT ADDRESS: C/O.PREMNATH,
VADAVATTATH HOUSE, SUBASH NAGAR,
TRAMWAY, CHALAKUDY 680 307, THISSURE DT.
AS PER ORDER DATED 21.10.2021 IN IA 4/2021
(RESPONDENTS 1 TO 10 REPRESENTED BY AGENT AND POA
MADHU, S/O.PUZHANKARA BHASKARAN,
AGED 48, KALLUR VADAKKUMMURI VILLAGE/PO-680 731,
MUKUNDAPURAM TALUK,
VIDE EXT.A1 IN THE TRIAL COURT.
ADDL. R13 SAROJINI SASIDHARAN
AGED 57 YEARS
HOUSE WIFE, W/O.SASIDHARAN,
PUZHANKARA HOUSE, P.O.THAIKKOOTTAM, KADUKUTTY,
THRISSUR DISTRICT.
*ADDL.RESPONDENT NO.13 IS IMPLEADED AS PER ORDER
DATED 21.10.2021 IN IA 1/2021
BY ADVS.
R1 TO R10 BY SRI.P.B.KRISHNAN
SRI.P.B.SUBRAMANYAN
SRI.P.M.NEELAKANDAN
ADDL.R13 BY SRI.SABU GEORGE
SRI GIRISH KUMAR V.C
SRI V.K.PEERMOHAMED KHAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
18.12.2023, THE COURT ON 7.5.2024 DELIVERED THE FOLLOWING:
RSA NO. 311 OF 2017 4
T.R. RAVI, J.
--------------------------------------------
R.S.A. No.311 of 2017
--------------------------------------------
Dated this the 7th day of May, 2024
JUDGMENT
The plaint schedule properties belonged to one Lakshmikutty
Amma, the plaintiffs' mother, under Sale Deed No.1201/1953 of
SRO, Chalakkudy. The plaintiffs and their mother had migrated to
Malaysia. At the time of going, it is stated that Lakshmikutty Amma
had entrusted the plaint schedule properties with the mother of
defendants 1 & 2, Kunjikkavamma, who is the sister of Lakshmikutty
Amma's mother. It is stated that after the death of Kunjikkavamma,
defendants 1 & 2 were looking after the properties. Lakshmikutty
Amma died on 26.10.2004. After the death of Lakshmikutty Amma,
the plaintiffs as legal heirs, had requested the defendants to vacate
the plaint schedule property. When the defendants refused, the
plaintiffs filed the suit praying for recovery of possession of the plaint
schedule property on the strength of title with mesne profits.
2. The defendants filed a written statement contending that
the plaint schedule property had never been entrusted with
Kunjikkavamma. According to the defendants, Kunjikkavamma and
one Prabhakara Menon trespassed into the plaint schedule properties
on 01.01.1962, constructed a house therein, and started residing in
the building from 24.12.1962. It is stated that the construction was
completed in the year 1965. After the death of Kunjikkavamma,
defendants 1 & 2 and Prabhakara Menon modified the building by
constructing a kitchen and cattle shed in 1975 and 1980. It is stated
that a compound wall was constructed in the year 1992. The
defendants stated that they never obtained permission from the
plaintiffs or Lakshmikutty Amma and that Lakshmikutty Amma had
never obstructed the construction of the residential building in the
plaint schedule property, though she knew about the construction. It
is stated that the defendants have been taking the usufructs of the
property and have been paying the tax and electricity charges. The
defendants claimed uninterrupted, hostile, continuous, and peaceful
possession of the plaint schedule property, to the knowledge of
Lakshmikutty Amma, and hence contended that they have perfected
their title by adverse possession.
3. On the pleadings, the trial court raised issues regarding
adverse possession and the entitlement of the plaintiffs for recovery
of possession and mesne profits. On the side of the plaintiffs, their
power of attorney holder was examined as PW1, and documents
Exts.A1 to A6 were marked. Exts.A1 and A1(a) are the powers of
attorney executed by the plaintiffs. Ext.A2 is the certified copy of
Sale Deed No.1201/1953. Ext.A3 is the S.S.L.C. Book of the 2 nd
plaintiff. Ext.A4 is the Transfer Certificate issued by St.Alberts
College to the 1st plaintiff. Ext.A5 is the registered power of attorney
No.38/1972 executed by Lakshmikutty Amma in favour of Narayana
Menon, the husband of the 1st defendant. Ext.A6 is the letter issued
by the daughter of the 2nd defendant to the 1st plaintiff. On the side
of the defendants, DWs 1 to 6 were examined and Exts.B1 to B89
were marked. DW1 is the 1 st defendant, DW2 is the Village Officer of
the concerned Village, DW3 is the Secretary of the concerned
Panchayat, DW4 is the Advocate Commissioner who filed Ext.C1
commission report, DW5 is the Civil Engineer, who assisted DW4 in
preparing the valuation of the building, DW6 is the neighbouring
property owner and DW7 is an agricultural labourer engaged for work
in the plaint schedule property. Exts.B1 to B24 are land tax receipts
issued in favour of the 1st defendant and Prabhakara Menon.
Exts.B25 to B60 are building tax receipts from Kadukutty Panchayat.
Exts.B61 to B65 are demand notices issued from the Panchayat.
Ext.B66 is the death certificate of Prabhakara Menon. The rest of the
documents are also documents to show the possession of the
defendants over the property. The trial court decreed the suit and
the 1st appellate court dismissed the appeal filed by the defendants.
Aggrieved by the concurrent findings of the courts below, defendants
1 to 4 have filed this second appeal.
4. The second appeal was admitted on the following
substantial question of law:
"In the absence of evidence regarding entrustment, is
it not a case wherein the right of the plaintiff to have
possession of the property has been lost under Section
27 of the Limitation Act."
5. Heard Sri.K.G.Balasubramanian, on behalf of the
appellants, and Sri.P.B.Krishnan, on behalf of the respondents.
6. The suit has been filed for recovery of possession on the
strength of title and is not a suit for mandatory injunction. As such,
the details of entrustment for determining the period of limitation,
are not relevant. The questions to be answered are regarding the
title of the plaintiffs and their right to get possession. While
considering their right to get possession, it would become relevant
whether the defendants have perfected their title by adverse
possession. That alone has been the issue framed in the suit and
answered by the trial court and the 1st appellate court.
7. Before this Court, the main argument advanced by the
counsel for the appellants is that the plaintiffs are not Indian citizens
and their title has eclipsed on the coming into force of the Foreign
Exchange Regulation Act, 1973 (FERA for short). It is contended
that the plaintiffs are not entitled to hold properties. Another
contention taken is that given the principles laid down in the decision
in Sarala V. Little Flower Mission [2004 KHC 229], the
possession of the defendants ought to be found to be adverse and
the suit dismissed.
8. The property was acquired by Lakshmikutty Amma as per
Ext.A2 document, which is of the year 1953. The defendants do not
dispute the title of Lakshmikutty Amma. Their specific contention is
that Kunjikkavamma and Prabhakara Menon had trespassed into the
property in the year 1962. It is hence contended that their
possession is adverse to that of the true owner. Admittedly,
Lakshmikutty Amma and Kunjikkavamma belong to the same
Tarwad. The plaintiffs have produced Ext.A5, which is a registered
power of attorney executed by Lakshmikutty Amma in favour of
Narayana Menon, who is the husband of the 1 st defendant and the
son-in-law of Kunjukkavamma. It is relevant to note that the person
appointed as power of attorney under Ext.A5 was also the guardian
of the 3rd plaintiff, as evidenced by Ext.A3 S.S.L.C. Book issued to
the 3rd plaintiff. Ext.A4 Transfer Certificate issued from the
St.Albert's College also shows the relationship between the
predecessor-in-interest of the plaintiffs and the defendants and
Sri.Narayana Menon, who is the power holder. If Narayana Menon's
wife had trespassed into the property in 1962, there was no purpose
for the execution of a power of attorney in favour of Narayana Menon
in the year 1972. Ext.A5 power of attorney is relating to the
individual and joint properties of Lakshmikutty Amma and her
husband Krishnankutty Menon. The 1 st defendant expressed total
ignorance about the execution of Ext.A5 registered power of attorney
in favour of her husband. The plaintiffs contend that the property
had been entrusted to Kunjikkavamma and after her death through a
registered power of attorney, the properties had been entrusted to
the son-in-law of Kunjikkavamma, Sri.Narayana Menon and as such
the possession is only permissive and will never qualify as an
adverse possession with any hostile animus. The trial court also
considered the admission of the defendants that Lakshmikutty Amma
and her husband who were residing in Malaysia were occasionally
coming to the plaint schedule property and residing there during
their stay in India, as a factor that goes against the claim of adverse
possession. The trial court found that Ext.A2 document would show
that Lakshmikutty Amma had obtained the landed property along
with the structures therein and that the report of the Advocate
Commissioner shows that the building is an old one having a
"thattumpuram" and "naalukettu". The court also took into
consideration the fact that the defendants did not have any
counterclaim regarding the ownership of the building and there was
nothing in evidence to show that the building on the property was
constructed by the defendants or Kunjikkavamma. Relying on the
decision of the Hon'ble Supreme Court in Hemaji Waghaji Jat vs
Bhikhabhai Khengarbhai Harijan & Ors. [AIR 2009 SC 103],
Anumayya and Another V. Secretary to Government of
Karnataka Revenue Department [2010 KHC 6180] and Ramlal
and Another V. Phagua and Others [2006 KHC 17], the trial
court decreed the suit and held that the defendants have failed to
prove the requirements of adverse possession.
9. The 1st appellate court re-examined the evidence and
dismissed the appeal confirming the judgment of the trial court. The
1st appellate court relied on the decision in Karnataka Board of
Wakf V. Government of India [2004 KHC 1809],
L.N.Ashwathama and Another V. P.Prakash [2009 KHC 5996]
and the judgment in Hemaji (supra) to support the conclusions.
10. The 1st appellate court rightly found that since the
defendants admitted the title of the plaintiffs over the plaint schedule
property and set up a claim of adverse possession, it is for the
defendants to prove the said claim. The court found that the
contention of the defendants that they had constructed the house in
the property cannot be accepted in the absence of evidence either
documentary or oral regarding the construction of the house. The 1 st
appellate court also took into account the fact that Lakshmikutty
Amma was staying in the plaint schedule property when she visited
the native place. Regarding Ext.A5 document executed by
Lakshmikutty Amma and Krishnanakutty Menon appointing the
husband of DW1 as power of attorney, the Court noticed that DW1
has given evasive answers. She even went to the extent of saying
that for the past more than 3 years, she has not seen her husband.
She also says that she did not enquire with her husband about the
power of attorney. The court has found that in view of the execution
of the power of attorney in the year 1972, it cannot be held that
there was any hostile animus for the defendants from 01.01.1962,
which is the date claimed by the defendants as the date of trespass.
The appellate court found that the contention of the plaintiffs that
the properties were entrusted with Kunjikkavamma and later with
the husband of DW1 as power holder is more probable. The trial
court as well as the appellate court have considered the evidence in
detail and arrived at a finding regarding adverse possession. I do
not find any reason to upset the said findings in an appeal under
Section 100 of the Code of Civil Procedure. The findings cannot be
said to be perverse and the trial court as well as the appellate court
have considered the entire evidence on record from the correct
perspective. The contention of the defendants regarding adverse
possession hence cannot be sustained.
11. The only other question that has been raised for the first
time in the second appeal is the question of whether the plaintiffs
can hold properties in view of the provisions of the FERA. The
counsel for the appellants relied on the decision in Asha John
Divianathan V. Vikram Malhotra and Others [2011 KHC 6112].
The contention that the title of the plaintiffs has eclipsed, is not
legally correct and is not supported by the judgment referred to by
the counsel for the appellant. The Hon'ble Supreme Court has in the
said judgment referred to Section 31 of the FERA, which only says
about restrictions in holding immovable property in India. The court
further observed that there was a requirement for a disclosure of the
properties held in India by a person who is not a citizen of India.
However, the judgment does not say that the title of the person who
is not a citizen of India is lost by the operation of any of the
provisions of the FERA. The counsel for the respondents, in reply to
the above contention, pointed out the provisions of the Foreign
Exchange Management Act 1999 (the FEMA for short), which permits
persons who are not citizens of India to hold properties, if the
property had been acquired, held, or owned by such person when he
was a resident in India or inherited from a person who was a resident
in India. On a reading of the provisions of the FERA and the FEMA, I
do not find an absolute bar for holding a property particularly when
the property had been acquired before leaving India. The contention
raised will not in any manner support the contention of the
defendants that they have perfected their title by adverse
possession. No grounds are made out to warrant interference.
The second appeal fails and is dismissed. There will be no
order as to costs.
Sd/-
T.R. RAVI
JUDGE
Pn
RESPONDENTS' ANNEXURES:
ANNEXURE-I: TRUE COPY OF THE REQUEST SUBMITTED BEFORE THE
PANCHAYATH
ANNEXURE-II: TRUE COPY OF THE REQUEST SUBMITTED TO THE
PRINCIPAL SECRETARY, REVENUE AND DISASTER
MANAGEMENT
ANNEXURE-III: TRUE COPY OF THE PROCEEDINGS ISSUED BY THE
DISTRICT COLLECTOR, THRISSUR
ANNEXURE-IV: TRUE COPY OF THE PROCEEDING ISSUED BY THE
EXECUTIVE MAGISTRATE COURT, CHALAKKUDY
