Kerala High Court
Kamalakshy Amma Sarada Amma,(Died) vs Velayudhan Jayakumar on 28 February, 2025
RSA No.54 of 2002
1
2025:KER:16692
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
FRIDAY, THE 28TH DAY OF FEBRUARY 2025 / 9TH PHALGUNA, 1946
SA NO. 54 OF 2002
AGAINST THE JUDGMENT&DECREE DATED 31.07.2001 IN AS NO.83 OF 1996 OF
SUB COURT,NEYYATTINKARA ARISING OUT OF THE JUDGMENT&DECREE DATED 31.01.1996
IN OS NO.783 OF 1993 OF II ADDITIONAL MUNSIFF COURT ,NEYYATTINKARA
APPELLANT IN SA-RESPONDENTS 1&2/DEFENDANTS 1&2:
1 KAMALAKSHY AMMA SARADA AMMA,(DIED)(Legal Heir)
KOTTAKKAKATHU VELIYATHERUV VEEDU,, KADAVATTARAM DESOM,
NEYYATTINKARA. (IT IS RECORDED THAT THE FIRST APPELLANT DIED
AND THE 2ND APPELLANT AND R4 TO R6 ARE THE LEGAL HEIRS OF
THE DECEASED VIDE ORDER DATED 17.12.2004 ON MEMO DATED
02.11.2004 BEARING CF.NO.7313/2004.)
2 VASUDEVAN PILLA MADHUSUDANAN NAIR
OF DO.DO.
BY ADVS.
GEORGE VARGHESE(PERUMPALLIKUTTIYIL)
A.R.DILEEP
RESPONDENTS IN SA/APPELLANT/RESPONDENTS 3 TO 9 PLAINTIFF &DEFENDANTS 3 TO
7 ABD ADDL.DEFENDANTS 9 AND 10:
1 VELAYUDHAN JAYAKUMAR
RESIDING AT RETHNA BHAVANAM, KADAVATTARAM DESOM,,
NEYYATTINKARA.
2 KAMALAKSHY AMMA SAROJINI AMMA,(DIED)
KOTTAKKAKATHU VALIYATHERUVU VEEDU,, KODAVATTARAM DESOM,
NEYYATTINKARA VILLAGE OF DO.DO.
3 KAMALAKSHY AMMA VIMALA DEVI (DIED)
OF DO.DO., (IT IS RECORDED THAT R3 IS DIED AND APPELLANTS
RSA No.54 of 2002
2
2025:KER:16692
AND RESPONDENTS 4 TO 8 ARE THE LEGAL REPRESENTATIVES OF THE
DECEASED R3 AS PER ORDER DATED 18.07.2002 IN MEMO
CF.645/2002 DATED 30.01.2002 )
4 VASUDEVAN PILLA, MANIKANTAN NAIR
ALIAS SREEDHARAN NAIR, OF DO.DO.
5 VASUDEVAN PILLA SREEKANTAN NAIR,
OF DO.DO.
6 SARADA AMMAKUMARI LETHA,
.OF DO.DO.
7 GOPALAKRISHNAN NAIR GOPIKRISHNAN NAIR,
LAYATHIL VEEDU, OF DO.DO.
8 SYAMALAKUMARI SREEKUMARI,
OF DO.DO
ADDL.R9 V.S.SINDHU,
D/O.SAROJINI AMMA, KOTTAKKAKATHU VALIYATHERUVU
VEEDU,KADAVATTARAM DESOM,NEYYATTINKARA.(THE ADDITIONAL 9TH
RESPONDENT IS IMPLEADED AS THE SOLE LEGAL REPRESENTATIVE OF
THE DECEASED 2ND RESPONDENT VIDE ORDER DATED 17.06.2009 IN
IA.1745/2008)
ADDL.R10 S.PRASANNA KUMARIAMMA
PRIYA BHAVAN,MANNOTTUKARA,PAYATTUVILA
P.O.,BALARAMAPURAM,THIRUVANANTHAPURAM.
ADDL.R11 SREE PRIYA P.S.,
PRIYA BHAVAN,MANNOTTUKARA,PAYATTUVILA
P.O.,BALARAMAPURAM,THIRUVANANTHAPURAM. (ADDL.R10 & R11 ARE
RECORDED AS LRS OF DECEASED FOURTH RESPONDENT VIDE ORDER
DATED 23.09.2010 IN IA.2287/2010)
BY ADVS.
R1 BY ADV.R.T.PRADEEP
R1 BY AJAY KRISHNAN
R4 TO R11 BY ADV.G.P.SHINOD
R9 BY ADV. MANU V.
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22.01.2025 , THE
COURT ON 28.02.2025 DELIVERED THE FOLLOWING:
RSA No.54 of 2002
3
2025:KER:16692
CR
JUDGMENT
1. The appellants are the defendants 1 & 2 in O.S.No.783/1993 of
the Munsiff's Court, Neyyattinkara. Defendants 1 and 2 are mother
and son. The facts of the case relevant for this appeal are more or
less admitted by the parties.
2. The suit was originally against defendants 1 & 2 for recovery of
possession, for putting up the boundaries and injunction with
respect to Plaint A schedule property which is
'KLMNOPCDTSRQJ' Plot allotted to him as per Ext.A1 Final
Decree dated 02/06/1977 in O.S.No.1323/1968 of the same Court
for partition. Originally the area was shown as 4.329 cents and
later it was amended as 4.322 cents. The plaintiff was the 11th
defendant and the defendants 1 & 2 were the defendants 3 & 7 in
O.S.No.1323/1968. The defendants 1 & 2 were allotted
2025:KER:16692
'RSTDEUVW' as per Ext.A1 Final Decree. Except the plaintiff and
the 11th defendant (plaintiff herein), all the other parties in
O.S.No.1323/1968 belonged to the Tharavadu of the Defendants
1 & 2 herein. The plaintiff and the 11th defendant in
O.S.No.1323/1968 were assignees of the co-owners of the
Tharavadu. As per Ext.A1 Final Decree, the property therein
having an extent of 14.298 cents identified by the Advocate
Commissioner out of the Plaint Schedule property of 19 cents, was
divided into four plots. All the parties, except the 11th defendant
(plaintiff herein) took delivery of the plots as per Ext.A1 Final
Decree. The defendants 1 & 2 had filed another suit as
O.S.No.710/1983 in the same Court and had obtained stay of
execution of Ext.A1 Final Decree by the plaintiff herein for the
period from 04/10/1983 to 21/01/1984 as revealed from Ext.B11
Interim Order and Ext.B12 judgment dismissing O.S.No.710/1983.
Appeal as A.S.No.216/1988 filed by the defendants 1 & 2 herein
was dismissed by Ext.A3 judgment. The plaintiff included Plaint B
2025:KER:16692
schedule property in the Plaint through amendment which is a
construction in the Plaint A schedule property. The defendants 3
to 10 were impleaded subsequently as they are the adjacent
property owners who are necessary for the fixation of boundaries.
The suit as amended was for recovery of possession of the
trespassed portion of the Plaint A schedule property from the
defendants after demolishing Plaint B schedule structures, for
perpetual injunction against trespass into the Plaint A schedule
property and against construction of new boundary therein, for
allowing the plaintiff to put up the northern and southern
boundaries of the plaint schedule property.
3. The defendants 1 & 2 filed Written Statement and Addl. Written
Statement contending, inter alia, that Ext.A1 Final decree is not
executable as it is hopelessly barred by limitation; that the present
suit is barred by limitation as the same was not filed within 12 years
from the date of Ext.A1 Decree and that they have perfected their
title by adverse possession and limitation.
2025:KER:16692
4. The defendants 9 & 10 who are the legal heirs of the 10th
defendant in O.S.No.1323/1968 filed Written Statement raising
contentions similar to those of the defendants 1 & 2.
5. The Trial Court dismissed the suit, holding that the suit is barred
by limitation and that defendants 1 & 2 could establish adverse
possession over the plaint A schedule property.
6. On appeal filed by the plaintiff, the First Appellate Court set aside
the judgment and decree of the Trial Court and decreed the suit
allowing recovery of possession of Plot
'JLMNUVOPCDGRWSTRI' having an extent of 4.260 cents
marked in Ext.C1(a) Plan on the strength of title, removing plaint
B schedule construction, with fixation of boundaries and
consequential injunction. The First Appellate Court found that the
suit is not barred by res-judicata and Section 47 CPC; that the
plaintiff has got title over the Paint A schedule property on the
strength of Ext.A1 Final decree; the present suit is perfectly
maintainable; that rights claimed by the defendants 1 & 2 by
2025:KER:16692
adverse possession and as per Section 44 of the Transfer of
Property Act are not established.
7. This Court admitted the Second Appeal on 11.01.2002 without
formulating substantial question of law. Hence, I formulated the
following substantial question of law in this Appeal:
1. Whether a separate suit for recovery of possession
is maintainable, at the instance of a person who did
not take delivery of the property pursuant to a Final
Decree passed in a partition suit?
2. Whether the First Appellate Court is justified in
holding that the title of the plaintiff is not lost by
adverse possession?
8. I heard the learned counsel for the appellant, Sri.George Varghese
Perumpallikkuttiyil, the learned counsel for the first respondent,
Sri. R.T. Pradeep, and the learned counsel for the respondents 2
& 4 to 8, Sri. G.P. Shinod.
2025:KER:16692
9. The learned counsel for the appellant contended that the present
suit for recovery of possession is clearly barred under Section 47
C.P.C. Ext.A1 Final Decree in O.S.No.1323/1968 is dated
02.06.1977 and the plaintiff who was the 11th defendant in the said
suit ought to have taken delivery of the plaint schedule property by
executing the said Final Decree within a period of 12 years as
provided under Article 136 of the Limitation Act. Fresh suit for
recovery of possession is clearly barred under Section 47 of the
CPC. Ext.A1 Final Decree was passed in O.S.No.1323/1968 for
partition of plaint schedule property therein, which had an extent
of 19 cents. On the purchase of a share of one of the co-owners
of the Tharawad, the plaintiff became one of the co-owners of the
plaint schedule property, and the co-ownership continued only till
the date of Ext.A1 Final Decree. On passing Ext.A1 Final Decree
the right of the plaintiff got crystallized into a specific plot allotted
to him as per Ext.A1 Final Decree. Thereafter, the said plot
exclusively belonged to the plaintiff, over which the defendants 1
2025:KER:16692
& 2 did not have any right. On termination of the co-ownership, the
possession of defendants 1 & 2 became adverse to the title of the
plaintiff, and they started possessing the plaint schedule property
with hostile animus continuously and peacefully with clear
knowledge to the plaintiff. On completion of the statutory period of
12 years, defendants 1 & 2 have perfected their title over the plaint
schedule property by adverse possession. The learned counsel
relied on the decision of the Privy Council in Sasi Sekhareswar
Roy v. Lalit Mohan Maitra [AIR 1925 PC 34] to substantiate the
point that the limitation period for filing a suit for possession would
start from the date of Arbitration Award for partition. The learned
counsel contended that the limitation period for filing the present
suit started from the date of Ext.A1 Final Decree and the same
expired on 02.06.1989 and not from the date of expiry of the
limitation period for executing Ext.A1 Final Decree. The learned
counsel cited the decisions of the Hon'ble Supreme Court in
Chiranji Lal v. Haridas [(2005) 10 SCC 746] and Bimal Kumar
2025:KER:16692
and Anr. v. Shakuntala Debi & Ors. [(2012) 3 SCC 548] to
substantiate the point that the period of limitation for execution of
a decree in a suit for partition commences from the date of decree
and not from the date on which the decree was engrossed on the
stamp paper. The learned counsel cited the decision of the
Hon'ble Supreme Court in K.R. Lakshminarayana Rao v. New
Premier Chemical Industries [(2005) 9 SCC 354] in which it is
held that a separate suit for recovery of possession at the instance
of the auction purchaser who failed to take delivery of the property
within one year provided under Article 134 of the Limitation Act, is
not maintainable. The learned counsel cited the decision of the
Hon'ble Supreme Court in Prem Singh v. Birbal [(2006) 5 SCC
353] in which it is held that the law of limitation ordinarily bars a
remedy, but does not extinguish a right and that the only exception
to the said Rule is Section 27 of the Limitation Act which provides
that at the determination of the period of limitation prescribed
therein the right of the person to the property involved in the said
2025:KER:16692
suit is extinguished and that Section 27 of the Limitation Act
applies to all types of suits. On the strength of the said decision,
the learned counsel contended that in view of Section 27 of the
Limitation Act on determination of the 12 years period provided
under Article 65 with respect to suits and 12 years period provided
under Article 136 with respect to the Execution of Decree, the right
of the plaintiff over the plaint schedule property has got
extinguished. The learned counsel cited the decision of this Court
in Livingston v. Sathyamma & Ors [2014 (1) KHC 786] in which
it is held that a decree for partition is also a decree for possession.
The learned counsel cited the decision of the Hon'ble Supreme
Court in Trinity Infraventures Ltd. (M/s.) v. M.S. Moorthy [2023
LiveLaw (SC) 488] in which it is held that on the basis of a mere
declaration of the rights that takes place under the preliminary
decree, the parties cannot trade in, on specific items of properties
or specific portions of suit schedule properties and that since there
are three stages in a partition suit viz. : (1) passing of preliminary
2025:KER:16692
decree in terms of Order 20 Rule 18(2) CPC, (2) appointment of a
commissioner and passing of a Final Decree in terms of Order 26
Rule 14(3) CPC, and (3) taking possession in execution of such
decree under Order 21 Rule 35, no party to a suit for partition,
even by way of compromise, can acquire any title to any specific
item of property if such a compromise is struck only with a few
parties to the suit. The learned counsel contended that without
taking delivery of the plaint schedule property in execution of
Ext.A1 Final Decree, the execution of the decree is not complete
and the plaintiff will not derive title over the plaint schedule
property.
10. The learned counsel for respondents 2 & 4 to 8 supported the
arguments of the learned counsel for the appellant. The learned
counsel for respondents 2 & 4 to 8 further contended that Ext.A1
Final Decree is not registered and executed in accordance with
Sections 17 and 89 of the Registration Act, 1908. Since Ext.A1
Final Decree is not engrossed on a non-judicial stamp paper,
2025:KER:16692
Ext.A1 Final Decree will not create any title in favour of the plaintiff.
The learned counsel cited the decision of this Court in Madhavi
Amma v. State of Kerala [1986 KLT 591] and Meenakshi V. P.
Soman Nadar [2024 (2) KHC 243] in support of his contention.
11. On the other hand, the learned counsel for the first
respondent/plaintiff contended that there is no absolute bar for a
fresh suit under Section 47 CPC. The bar is limited to the
questions relating to the execution, discharge, or satisfaction of
the decree. The present suit for recovery of possession is filed by
the plaintiff on the strength of title on the basis of Ext.A1 Final
Decree and it is not barred under Section 47 CPC. As far as the
present suit is concerned, the period of 12 years provided under
Article 65 of the Limitation Act starts only on the expiry of the
period of 12 years for execution of Ext.A1 Final Decree provided
in Article 136 of the Limitation Act. The present suit was filed in the
year 1993, i.e., well within the period of limitation from 02.06.1989,
the date on which the period for execution of Ext.A1 Final Decree
2025:KER:16692
expired. The learned counsel cited the decision of this Court in
Kerala State v. Brijit and Ors. [2018 (2) KHC 521] in which it is
specifically held that mere possession for a long time without
exhibiting a hostile animus will not constitute adverse possession
and that a person who bases his title on adverse possession must
show by clear and unequivocal evidence that his possession was
hostile to the real owner and amounted to a denial of his title to the
property. The learned counsel contended that there is no specific
pleading or evidence on the part of defendants 1 & 2 as to when
the alleged adverse possession started against the plaintiff. At any
rate, there could not be any hostile animus within the period of
limitation for executing Ext.A1 Decree. The learned counsel cited
the decision of this Court in Raghavan v. Devayani [2024 (2) KHC
417] in which it is held that a person pleading adverse possession
has no equity in his favour as he is trying to defeat the rights of the
true owner and it is for him to clearly plead and establish all the
facts necessary to establish adverse possession. The counsel
2025:KER:16692
contended that in the present case there is no pleading from the
side of the defendants 1 & 2 as to when the adverse possession
started with respect to the plaint schedule property. The learned
counsel cited the decision of this Court in Abdul Hameed
Rawther v. Basheer [2024 (3) KHC 216] in which it is held that a
person whose possession can be referable to a lawful title will not
be permitted to show that his possession was hostile to another's
title; that 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 statute of limitation; and that in
the case of co-owners it is not enough to show that one of them is
in sole possession and enjoyment of the profit and of the
properties and ouster of non possessing co-owner by co-owner in
possession who claims to be his possession adverse should be
made out. The learned counsel contended that admittedly the
plaintiff and the defendants 1 & 2 were the co-owners of the plaint
schedule property and hence even if the defendants 1 & 2
2025:KER:16692
continued in possession of the plaint schedule property after
Ext.A1 Final Decree, it should be treated as possession for and on
behalf of the plaintiff and it could not be adverse to the title of the
plaintiff. The learned counsel cited the decision of the Hon'ble
Supreme Court in Syeda Rahimunnisa v. Malan Bi (Dead) by
LRs and Anr [(2016) 10 SCC 315] in which it is held that when
the Trial Court as well as the First Appellate Court concurrently
found on appreciation of evidence that the respondents failed to
establish adverse possession on the suit land for want of adequate
evidence, the said finding is a finding of fact which is binding on
the High Court in the absence of any error of law in such finding.
12. I have considered the rival contentions.
Question of law No.1:
13. Admittedly, the plaintiff did not take delivery of the plaint schedule
property in execution of Ext.A1 Final Decree. The period for
executing Ext.A1 Final Decree is 12 years from 02.06.1977 in view
of Article 136 of the Limitation Act. The period of limitation starts
2025:KER:16692
from the date of Ext.A1 Final Decree in the partition suit and not
from the date on which the Final Decree was engrossed on the
stamp paper as held in Chiranji Lal and Bimal Kumar (supra).
The contention of the learned counsel for the respondents 2 & 4
to 8 that the Final Decree is not engrossed upon the stamp paper
is factually incorrect. On verification, it is seen that Ext.A1 Final
decree is engrossed upon non-judicial stamp papers. Hence the
decisions cited by the learned counsel the respondents 2 & 4 to 8
are not applicable to the facts of the present case.
14. The contention of the counsel for the 1 respondent is that the
st
present suit for recovery of possession is filed by the plaintiff on
the strength of title on the basis of Ext.A1 Final Decree and it is
not barred under Section 47 CPC.
15. The Full Bench of this Court in the decision in Danish Varghese
v. Jancy Danish [2021 (1) KHC 1] considered the question
whether a fresh suit for recovery of possession is maintainable at
the instance of an auction purchaser who failed to take delivery of
2025:KER:16692
the property within the limitation period. In the case of an auction
purchaser, he has to obtain delivery under Order 21 Rule 95 CPC.
The period of limitation prescribed for obtaining delivery is one
year as provided under Article 134 of the Limitation Act. This Court
after considering the several relevant decisions of the Hon'ble
Supreme Court and this Court on the point including the decision
cited by the learned counsel for the appellant in K.R. Lakshmi
Narayana Rao (supra) held that a fresh suit at the instance of the
auction purchaser who failed to apply for delivery as provided
under Order 21 Rule 95 CPC is barred under Section 47.
However, this Court made it clear that suits which do not offend
Section 47 CPC and suits for possession on the strength of title
deed that fall within the framework of Article 65 of the Limitation
Act would be maintainable. The suit on hand, does not belong to
the two categories found to be maintainable by the Full Bench in
the said decision.
2025:KER:16692
16. Even though the statutory provisions for taking delivery and for
prescribing the limitation period for applying delivery are different
with respect to an auction purchaser and with respect to a party to
a final decree in a suit for partition, Section 47 is of general
application to the execution of the decrees in all types of suits.
Hence the principle laid down by the Full Bench of this Court in
Danish Varghese (supra) is applicable to the execution of a final
decree in partition suit. In the case of final decree of partition, a
party who failed to take delivery of the property under Order 21
Rule 35 within the period of 12 years limitation period provided
under Article 136 of the Limitation Act, a fresh suit for recovery of
possession is not maintainable. The present suit is for obtaining a
decree for recovery possession and for obtaining delivery of the
property under Rule 347 of the Civil Rules of Practice by executing
the decree for possession. Delivery is a process coming within the
scope of execution. Hence the present suit is not maintainable in
view of the bar under Section 47 CPC. As held in the decision of
2025:KER:16692
this Court in Livingston (supra), the decree in a suit for partition
is a decree of possession of immovable property. Hence, delivery
of a property covered by a Final decree in a suit for partition is to
be obtained under Order 21 Rule 35 CPC. Delivery of the property
is a part of the execution of a Final decree in a suit for partition.
Section 47 CPC mandates that all questions arising between the
parties to the suit in which the decree was passed or their
representatives relating to the execution, discharge or satisfaction
of the decree shall be determined by the court executing the
decree and not by a separate suit. It indicates that with respect to
the execution, discharge or satisfaction of Ext.A1 Final Decree, a
separate suit is not maintainable. Since delivery is a part of
execution and the present suit is by the plaintiff who failed to take
delivery of the plaint schedule property in execution of Ext.A1 Final
Decree, the present suit is not maintainable in view of Section 47
CPC.
2025:KER:16692
17. The finding of the First Appellate Court that the suit is not barred
under Section 47 CPC is not correct. The substantial question of
law No.1 is answered in the negative and in favour of the
appellant.
Question of law No.2:
18. The present suit was filed on 26.08.1993. The present suit for
recovery of possession is governed by Article 65 of the Limitation
Act. The period of limitation prescribed in the said Article is 12
years. It starts when the possession of the defendant becomes
adverse to the plaintiff. Now, the question in the present case is
when did the possession of defendants 1 & 2 become adverse to
the plaintiff, whether it is from the date of Ext.A1 Final Decree or
whether it is from the date of expiry of the limitation period for
executing Ext.A1 Final Decree. If it started from the date of Ext.A1
Final Decree, the defendants 1 & 2 have perfected their title by
adverse possession. If it started from the date of expiry of the
limitation period for execution of Ext.A1 Final decree, the
2025:KER:16692
defendants 1 & 2 will not get the prescribed period for adverse
possession as the suit was filed much before the expiry of such
prescribed period for adverse possession.
19. Admittedly, the plaintiff and defendants 1 & 2 were co-owners of
the plaint schedule property till the date of passing Ext.A1 Final
Decree. As per Ext.A1 Final Decree, a specific plot marked as
'KLMNOPCDTSRQJ' is allotted to the plaintiff. When the title of
the plaintiff is crystallized and limited to the said plot alone,
whether the continuance of possession of the said plot by
defendants 1 & 2 will amount to adverse possession or not is the
question.
20. The three classic requirements of adverse possession are: nec vi
(adequate in continuity), nec clam (adequate in publicity) and nec
precario (adverse to a competitor). All these should coexist at the
same time for claiming adverse possession. In simple words,
Adverse possession must be actual, open, hostile, exclusive and
continuous.
2025:KER:16692
21. There is no statute specifically dealing with the law of adverse
possession. The concept of adverse possession evolved through
judge-made law. The law of adverse possession is based on the
law of limitation. The prescription of limitation period for a suit for
possession is the basis for the law of adverse possession. The
rationale behind adverse possession is that law and equity do not
help a person who is sleeping over his rights. The well accepted
maxim is that "Vigilantibus Non dormientibus jura subveniunt"
which means that law comes to the help of only those who are
vigilant in prosecuting the rights and not to the help of those who
sleep over their rights.
22. At the same time, a party pleading adverse possession has no
equity in his favour as he is attempting to defeat the ownership
rights of another person. The burden is heavy upon the person
claiming adverse possession to make specific and clear pleading
with respect to adverse possession and to establish the same with
cogent and clear evidence. The law of adverse possession
2025:KER:16692
protects wrong act by giving prescriptive title in favour of the wrong
doer on account of the inaction on the part of the title holder during
the period of limitation. The period for claiming adverse
possession is the same as prescribed in Article 65 of the Limitation
Act. The statutory base of adverse possession is Article 65 of the
Limitation Act read with Section 27 of the Limitation Act. The 12
years limitation period for filing a suit for possession provided in
Article 65 of the Limitation Act starts when the possession of the
defendant becomes adverse to the plaintiff. The concept of
adverse possession contemplates hostile possession and not
mere possession. Since the starting point of limitation of 12 years
prescribed in Article 65 of the Limitation Act is the point when the
possession of the defendant becomes adverse to the plaintiff, it
could be well said that there is no period of limitation for recovery
of immovable property based on the title in the absence of any
adverse possession. Going by Article 65, the plaintiff who files a
suit for possession based on title need not prove that he was in
2025:KER:16692
possession of the property sought to be recovered within 12 years
immediately preceding the institution of the suit.
23. Section 27 of the Limitation Act provides that at the
determination of the period limited to any person for instituting a
suit for possession of any property, his right to such property shall
be extinguished. In view of Section 27 of the Limitation Act, on the
expiry of 12 years provided in Article 65 the right of the plaintiff in
the suit over the property sought to be recovered is clearly
extinguished. Section 27 is applicable only to suits and not
applicable to execution of decrees. In such case, the right of the
plaintiff over the suit property will not get extinguished as per
Section 27, at the determination of the period for executing the
decree for possession. Hence, I am unable to sustain the
contention of the counsel for the appellant that in view of Section
27 on the expiry of the period of 12 years prescribed for execution
of Ext.A1 decree under Article 136, the right of the plaintiff in the
property got extinguished.
2025:KER:16692
24. The crucial factual question to be ascertained in the present case
is when would the possession of the defendants 1 & 2 become
adverse to the plaintiff. The defendants 1 & 2 did not raise a plea
of adverse possession in the original Written Statement. In the
additional Written Statement, they have raised a plea of adverse
possession stating that they have been in possession of the plaint
schedule property even prior to 1968; that since the said
possession as absolute owner to the knowledge of the plaintiff
continued uninterruptedly till date, the plaintiff lost his rights and
the defendants have prescribed their title by adverse possession
and limitation and that mere passing of decree for partition
declaring the plaintiff's share in O.S.No.1323/1968 will not
interrupt the continuous possession of the defendants so long as
the plaintiff herein did not take out execution for getting
possession. The law is well settled that in the case of co-owners,
there could not be any adverse possession even if one of the co-
owners is in exclusive possession, in the absence of any ouster
2025:KER:16692
clearly pleaded and established by the co-owner in possession.
From the averments in the Written Statement, it is not clear from
which date defendants 1 & 2 have been claiming that their
possession is adverse to the plaintiff. The contention of the
learned counsel for the appellant that the possession of
defendants 1 & 2 became adverse to the plaintiff on the date of
passing Ext.A1 Final Decree. There is no specific averment to that
effect in the Written Statement. Admittedly, up to the date of
Ext.A1 Final Decree, the parties were in co-ownership of the plaint
schedule property, and there could not be any adverse
possession. It is not pleaded and proved by defendants 1 & 2 that
their possession became adverse to the plaintiff from the date of
Ext.A1 Final Decree. Even after termination of co-ownership, a
sharer can continue in possession of the property allotted to
another sharer without any hostile animus. If there is any change
in the mental status of possessor-sharer to have hostile animus
against the owner-sharer who is entitled to the property, the
2025:KER:16692
burden is heavy upon the possessor- sharer to prove hostile
animus. In such case, it is found that defendants 1 & 2 could not
establish adverse possession with necessary pleadings and
evidence.
25. The plaintiff had every right to take delivery of the plaint schedule
property within 12 years from the date Ext.A1 Final Decree. Since
Section 27 of the Limitation Act is not applicable to execution
proceedings, the title of the decree holder will not get extinguished
on the determination of the limitation period for executing the
decree. The concept of adverse possession is based on Article 65
of the Limitation Act, applicable to suits only, and not based on
Article 136 of the Limitation Act, applicable to the execution of
decrees.
26. The First Appellate Court rightly found that defendants 1 & 2 did
not perfect their title by adverse possession. The substantial
question of law No.2 is answered in the affirmative and against the
appellant.
2025:KER:16692
27. In view of the answer to the substantial question of law No.1,
this Second Appeal is allowed setting aside the judgment and
decree of the First Appellate Court and dismissing the suit.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
jma
