Kerala High Court
Easi, (Died Legal Heirs Impleaded) vs St.Louis Church on 26 May, 2025
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RSA NO. 450 OF 2020
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
MONDAY, THE 26TH DAY OF MAY 2025 / 5TH JYAISHTA, 1947
RSA NO. 450 OF 2020
AGAINST THE DECREE & JUDGMENT DATED 19.11.2019 IN AS
NO.7 OF 2019 OF SUB COURT, KOCHI ARISING OUT OF THE DECREE
AND JUDGMENT DATED 31.8.2018 IN OS NO.432 OF 2010 OF ADDL.
MUNSIFF'S COURT, KOCHI
APPELLANT/APPELLANT/DEFENDANT:
1 EASI, (DIED & LEGAL HEIRS IMPLEADED)
S/O.LONAN,PULICHUMACHAL HOUSE, MUNDAMVELI,
KOCHI-682 507.
*ADDL. ELSY
A2 AGED 73 YEARS
W/O.LATE EASI,PULICHUMACHAL HOUSE, MUNDAMVELI,
KOCHI-682 507, ERNAKULAM DISTRICT.
*ADDL. JOHNY,
A3 AGED 51 YEARS
S/O.LATE EASI,PULICHUMACHAL HOUSE, MUNDAMVELI,
KOCHI-682 507, ERNAKULAM DISTRICT.
*ADDL. JOY
A4 AGED 47 YEARS
S/O.LATE EASI,PULICHUMACHAL HOUSE, MUNDAMVELI,
KOCHI-682 507, ERNAKULAM DISTRICT.
*ADDL. JACOB,
A5 AGED 44 YEARS
S/O.LATE EASI,PULICHUMACHAL HOUSE, MUNDAMVELI,
KOCHI-682 507, ERNAKULAM DISTRICT.
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*THE LEGAL HEIRS OF DECEASED FIRST APPELLANT ARE
IMPLEADED AS ADDL.APPELLANTS 2 TO 5 AS PER ORDER DATED
11.11.2020 IN IA.4/2020.)
BY ADVS.
SHRI.G.KRISHNAKUMAR (FOR ADDL.A2 - A5)
SRI.B.S.SURAJ KRISHNA (FOR ADDL.A2 - A5)
RESPONDENT/RESPONDENT/PLAINTIFF:
ST.LOUIS CHURCH,
MUNDAMVELI, REPRESENTED BY ITS VICAR,FR.XAVIER
CHIRAMMEL,MUNDAMVELI, KOCHI-682 507, ERNAKULAM
DISTRICT.
BY ADV SHRI.G.SREEKUMAR (CHELUR)
SRI.P.K.GEORGE
SMT.SMITHA GEORGE
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 26.05.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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EASWARAN S., J.
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RSA No.450 of 2020
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Dated this the 26th day of May, 2025
JUDGMENT
The defendant in OS No.432/2010 on the files of Munsiff's
Court, Kochi, a suit for fixation of boundary, recovery of possession
and injunction, is the appellant herein.
The brief facts necessary for the disposal of the appeal are as follows:
2. The respondent-plaintiff is a Church, which is in
possession of 52 cents of land (plaint A schedule property) in survey
No.451/4 of Rameswaram Village, Kochi Taluk as per document
No.1723/1924 of Kochi SRO. The defendant was put in possession of
plaint B schedule property measuring 10 cents of land comprised in
the same survey No.451/4 as per kudikidappu certificate issued in
O.A.No.1779/1971 dated 29.11.1971 of Land Tribunal, Vypin. The total
extent of the area covered by document No.1723/1924 is 1.28 Acres,
out of which five persons, including the defendant, were given 10
cents each of kudikidappu rights and another five persons were given
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26 cents of land as small pieces of land. During the first week of
August, 2008, the defendant created trouble by cutting the trees
standing in plaint A schedule property against which the plaintiff
lodged a complaint. On 26.9.2008, the plaintiff approached the Taluk
Surveyor, but he declined to measure out the property belonging to
the defendant by way of kudikidappu due to the illegal interference of
the defendant. Hence, the suit was instituted.
3. The defendant appeared and contested the suit by raising
a contention that he had perfected title over the five cents of land by
adverse possession, since he was in possession of the property from
1973 onwards. With the material averments as above, the parties
went to trial. On behalf of the plaintiff, Exts.A1 to A11 documents were
marked and PW1 to PW7 were examined. On behalf of the defendant,
Ext.B1 was marked and he himself was examined as DW1. The
commissioners' reports and sketches were marked as Exts.C1 and C2
and Exts.C1(a), C1(b) and C2(a).
4. Immediately after examination of DW1, the plaintiff filed
IA No.515/15 seeking amendment of the plaint by incorporating a
fresh prayer for recovery of possession. The said application was
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allowed on 8.9.2015 and accordingly, the amendment was carried on,
on 17.9.2015. After the amendment, the defendant filed an additional
written statement contending that the amendment sought for is
unsustainable. It was further contended that the defendant is in
absolute possession of the property hostile to the plaintiff for more
than 38 years. The continuity of possession of the defendant was
never broken by the plaintiff, although they were aware of the adverse
possession. It was further contended that the valuation was wrong
and that the plaintiff was bound to pay court fee in terms of Section
29 of the Kerala Court Fees and Suits Valuation Act, 1959. Based on
the amended plaint and also the prayers contained in the original
plaint, the trial court framed the following issues for consideration:
(i) Whether the plaintiff has got title and ownership over
plaint A schedule property?
(ii) Whether the plaintiff is entitled to get fixation of
boundary as prayed for?
(iii) Whether the plaintiff is entitled to get
mandatory injunction as prayed for?
(iv) Whether the plaintiff is entitled to get a decree
of prohibitory injunction as prayed for?
(v) What is the order as to reliefs and costs?
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On the basis of the amended plaint and Additional written
statements, the following additional issues were also raised:-
(i) Whether the claim of adverse possession over 5 cents
of land from the plaint A schedule property made by the
defendant is sustainable?
(ii) whether the plaintiff is entitled for a decree for
recovery of possession of 5.590 cents of land in the
plaint A schedule property from the defendant as
prayed for?
Further additional issue:
(i) Whether the plaintiff is entitled to recover the plaint
C schedule property?"
5. The trial court, after analysing the evidence on record,
found that the defendant had since failed to prove his claim of adverse
possession over the plaint C schedule property, his status inside the
plaint schedule property continues to be that of a trespasser and
therefore, the prayer for recovery of possession of the plaint schedule
property was found to be maintainable. The defendant carried
forward the challenge before the first appellate court and the sub
court by judgment dated 19.11.2019 in AS No.7/2019 confirmed the
findings of the trial court and dismissed the appeal. Aggrieved by the
concurrent finding, the defendant comes up with this appeal and this
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Court admitted the appeal on the following substantial questions of
law:
"i) Unless the body of plaint and cause of action portion
contain specific pleading to the effect that the plaintiff who
claims title over the property is dispossessed by the
defendant and if the suit is valued by paying Court Fee
under Section 29 of the Kerala Court Fees And Suit
Valuation Act which is applicable only for recovery of
possession based on previous possession, can the court
grant a decree of recovery of possession based on title?
ii) In a case where the plaint contain specific averment
to the effect that the plaintiff is in absolute ownership and
in possession of the property, is the plaintiff entitled to get
a decree of recovery of possession that too without having
any material facts in the plaint containing dispossession
from any particular date for entitling decree of recovery of
possession based on title?
iii) In a case where the plaintiff has valued the suit Under
Section 29 of The Kerala Court Fees and Suit Valuation Act
claiming a decree for possession of immovable property
under Section 6 of Specific Relief Act (Earlier Section 9 of
Specific Relief Act 1877), whether the plaintiff is entitled to
get a decree for possession as contemplated under Section
30 of the Kerala Court Fees and Suit Valuation Act?
iv) In the absence of pleading in the plaint and cause of
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action to the effect that the plaintiff is dispossessed from
the plaint schedule property from a particular date,
whether the courts below are justified in framing an issue
for recovery of possession and granting a decree of recovery
of possession on the basis of title in view of Brijeesh
Haridas Vs, Ramachandran 2018(2) KHC 454?
v) Can an application for amendment of plaint filed
after trial, O VI R17 of C.P.C, be allowed as a matter of
course in view of law laid down in Kalpana and another v.
Premakumari and another 2014 KHC 420?"
6. Heard Sri.G.Krishnakumar, the learned counsel
appearing for the appellant/defendant, and Sri.G.Sreekumar
(Chelur), the learned counsel appearing for the respondent/plaintiff.
7. The learned counsel for the appellant, G.Krishnakumar
would contend that the finding of the trial court as confirmed by the
1st appellate court on the question of adverse possession of the
defendant/appellant is wrong, inasmuch as both the courts failed to
appreciate the clear admission on behalf of the plaintiff by PW6. It is
further pointed out that the court fee liable to be paid is incorrect and
that the court fee ought to have been paid at the market rates as
provided under Section 30 of the Kerala Court Fees and Suits
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Valuation Act, 1959. It is further submitted that even after the
amendment, the cause of action of the suit remained as such and there
is no averment in the plaint to show that the plaintiff has lost
possession and hence, the suit for recovery of possession will not lie.
In support of his contentions, he relied on the decisions of the
Supreme Court in Rajasthan High Court Advocates
Association v. Union of India & Ors [2001 KHC 1716] and of
this Court in Mathilakath Skaria & Another v. Mathilakath
Joseph & Another [2013 (1) KHC 293] & Brijesh Haridas v.
Ramachandran @ Unni and Others [2018 (2) KHC 454], and
that of the Madhya Pradesh High Court in Kalooram and Anr v.
Mangilal [1984 KHC 1812]. It is the specific case of
Sri.G.Krishnakumar that the suit as such framed is not maintainable
and therefore, the judgment and decree passed by the trial court as
confirmed by the first appellate court requires to be interfered with.
Lastly, it is contended that the evidence of the defendant as contained
in the proof of record has not been controverted in any manner while
the defendant was cross-examined.
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8. Per contra, the learned counsel appearing for the
respondent/plaintiff, Sri.G.Sreekumar (Chelur), would contend that
since the plaintiff being the member of the parish church is estopped
from disputing the title of the church, even on the ground of adverse
possession because to claim ownership and title, the church is being
represented by the parishioners. It is further contended that though
the defendant was entitled to only three cents of land, since the
property is situated within the Corporation area, the plaintiff had
agreed to grant a purchase certificate for 10 cents. As regards the
claim that the plaintiff has not pleaded dispossession from the plaint
schedule property, a reference to the contention in paragraph 6 of the
written statement, the learned counsel would point out that when the
parties approached the trial of the suit, by fully knowing the issues
raised therein and also the plea of the respective parties, the
defendant cannot be permitted to resile from the same. It is further
pointed out that in terms of Section 106 of the Indian Evidence Act, a
tenant cannot dispute the title of the landlord. The purchase
certificate being issued in the year 1971, there is no gainsay on the part
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of the defendant to contend that he was in possession of 15 cents of
land right from the date on which he became a kudikidappukaran.
9. I have considered the rival submissions raised across the
bar and perused the judgments rendered by the trial court as well as
by the first appellate court and perused the records.
10. Before going into the question as to whether the suit
framed as such is maintainable qua the relief for recovery of
possession, this Court needs to address the preliminary issue raised
by the learned counsel for the appellant. According to
Sri.G.Krishnakumar, the learned counsel appearing for the appellant,
the court fee ought to have been paid in terms of Section 30 of the
Kerala Court Fees and Suits Valuation Act, 1959. A perusal of the
plaint would show that the plaintiff had computed the court fee and
valued the suit in terms of Sections 50 and 27 of the Kerala Court Fees
and Suits Valuation Act, 1959. Later, when the recovery of possession
was sought for the valuation was amended in terms of Section 29 of
the Kerala Court Fees and Suits Valuation Act, 1959. The contention
of Sri.G.Krishnakumar that the court fee under Section 30 ought to
have been paid on the market value of the property has to be judged
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in the light of the provisions contained under sub-Section (3) of
Sections 12 of the Kerala Court Fees and Suits Valuation Act, 1959.
For a comparative consideration of both the provisions, it is expedient
to extract Sections 12(3) and 30 of the Kerala Court Fees and Suits
Valuation Act, 1959.
"12.Decision as to proper fee in other Courts.-
xxx xxx xxx
(3) A defendant added after issues have been framed on
the merits of the claim may, if the court so permits, plead
that the subject-matter of the suit has not been properly
valued or that the fee paid is not sufficient. All questions
arising on such pleas shall be heard and decided before
evidence is recorded affecting such defendant, on the
merits of the claim, and if the Court finds that the subject
matter of the suit has not been properly valued or that the
fee paid is not sufficient the Court shall follow the
procedure laid down in sub-section (2).
Explanation.-Nothing in this sub-section shall apply to
a defendant added as a successor or a representative in
interest of a defendant who was on record before issues
were framed on the merits of the claim and who had an
opportunity to file a written statement pleading that the
subject matter of the suit was not properly valued or that
the fee paid was not sufficient."
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xxx xxx xxx
"30.Suits for possession not otherwise
provided for.-In a suit for possession of immovable
property not otherwise provided for, fee shall be
computed on the market value of the property or on
rupees one thousand whichever is higher."
11. A bare reading of Section 12(3) shows that any issue
relating to the court fee ought to have been raised by the defendant
before the evidence is recorded. Since the question arising on such
plea should be heard and decided before the evidence is recorded, and
if the court finds that the subject matter of the suit has not been
properly valued, it has to follow the procedure under Section 12(2).
The true purport of sub-Sections (2) and (3) is that whenever the
defendant raises a plea of insufficiency of the court fee, the court
should give an opportunity to the plaintiff to amend the valuation and
pay the court fee, in accordance with the amended valuation. It is now
trite law that even if the court fee or the question of valuation is not
raised at the trial stage, the same would be raised at the first appellate
stage. The basic principle behind that is, even at the first appellate
stage, the plaintiff should be given an opportunity to cure the defect
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which has crept in the valuation of the plaint (See Ajayakumar &
Ors v. Jyothi & Ors [2022 (5) KHC 62]).
12. It was also held by this Court in the aforesaid decision that
the insufficiency of the court fee cannot be raised at the final stage of
a suit. Applying the principles laid down in Ajayakumar (supra),
the plea regarding the deficiency of the court fee raised by the
Appellant is only to be rejected as the same is raised for the first time
before this Court in the second appeal. It must be remembered that,
the consequences of accepting the argument of the learned counsel
for the appellant would necessarily mean that the plaintiff will be now
deprived of an opportunity to rectify the mistake, if any, that had crept
in while the valuation of the suit was made. At any rate, since the
appellant has not raised this plea at any time before the trial court or
before the first appellate court, this Court is not inclined to go into the
aforesaid question. Therefore, the 1st and 3rd questions of law are
answered against the appellant.
13. The further question regarding the entitlement of the
plaintiff to seek amendment after the conclusion of the trial, the
parties are at serious variance as regards the said right. The learned
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counsel for the appellant strenuously argued that the amendment
caused after the conclusion of the trial caused serious prejudice to the
defendant. However, pertinently, it must be noted that the appellant
did not raise any challenge to the interlocutory order in
I.A.No.515/2015 dated 8.9.2015. The judgment and the decree of the
trial court was passed on 31.8.2018. It cannot be said that the
appellant was remediless against the order passed by the trial court in
I.A.No.515/2015. When the specific query was raised as regards the
inaction on the part of the defendant to challenge the order passed by
the trial court allowing the amendment, the learned counsel for the
appellant submitted that the collateral challenge can always be made
against the order in this appeal. However, this Court is afraid that the
aforesaid contention is unsustainable for the reason that even at the
first appellate stage, no challenge was raised against the order in
I.A.No.515/2015 and therefore, for the first time before this Court in
the second appeal, the challenge against the interlocutory order
cannot be made. Even otherwise, though it is permissible for a person
to challenge the order passed in the interlocutory application, along
with the main appeal, in the view of the the fact that the conditions
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under Order-43 Rule 1(a) have not been satisfied, the Court is not
inclined to accept the said challenge. Therefore, the question of law
raised accordingly is answered against the appellant.
14. Coming to the prime contention raised in the appeal, that
the claim of the plaintiff is barred by adverse possession, this Court
must notice the fact that both the courts have concurrently found that
the defendant has not adduced any independent evidence to prove the
claim. The thrust of the argument of Sri.G.Krishnakumar as regards
the plea of adverse possession is on the evidence of PW6. When the
evidence of PW6 is closely scrutinized, it is clear that there are stray
remarks about the possession of the defendant from the date of the
kudikidappu over nine cents of land. However, when tested with the
averments in the written statement, especially paragraph 6, this Court
finds that there is a clear contradiction in the plea raised by the
defendant as well as the evidence of PW6. The oral testimony of PW6
reveals that the defendant is in possession of nine cents of land,
whereas the claim of the defendant is only five cents. Apart from
PW6, though the defendant claims support from PW7, on going
through the evidence of PW7, this Court could not find any such
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remarks which tend to lend credence to the case pleaded by the
defendant.
15. It is now trite law that, the basic principle governing the plea
of adverse possession is that, the person who is claiming adverse
possession must independently prove the "animus possidendi".
The person asserting possession hostile to the true owner must
certainly prove with independent evidence and not pick holes from
the evidence led by the plaintiff to prove that his possession has been
proved hostile to that plaintiff. Viewed in the above perspective, this
Court cannot but notice that the defendant has miserably failed to
adduce independent evidence to show that he was in possession of
plaint C schedule property for a continuous period of more than 12
years. Therefore, it is held that the appellant has failed to prove the
claim of adverse possession and therefore, the findings rendered by
the trial court as affirmed by the first appellate court are perfectly
justified.
16. Lastly, it is contended before me that the lack of pleadings
in the plaint and the cause of action to the effect that the plaintiff is
dispossessed of the plaint schedule property from a particular date is
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fatal to the relief regarding recovery of possession. Reference is made
to the decision of this Court in Brijesh Haridas v.
Ramachandran @ Unni [2018 (2) KHC 454]. I am afraid that
this contention also cannot be sustained. As stated aforesaid, the
parties went to trial knowing fully what was the issue before the court.
The plaintiff claimed that the defendant encroached into plaint C
schedule property. The defendant denied the title of the plaintiff and
asserted that he had perfected the title by adverse possession. On a
conspectus reading of the plaint, this court finds that the necessary
ingredients for seeking recovery of possession are present. At any
rate, the parties were fully aware of the case set up by the opposite
side and both party went to trial fully knowing the issues at large. It
must be noted that, contrary to the infirmities, which are pointed out
before this court, the specific case pleaded by the defendant was that,
that he was in possession of the five cents of land thereby clearly
indicating the fact that the plaintiff was dispossessed from the five
cents (plaint C schedule property). Therefore, this Court has no other
alternative, but to reject the above argument.
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17. As an upshot of these discussions, the irresistible
conclusion is that the appellant/defendant has miserably failed to
prove the plea of adverse possession.
18. Resultantly, this Court cannot find any infirmity or
jurisdictional error in both the courts' concurrent findings on facts
that the defendant failed to adduce independent evidence to prove
that he had perfected title over the plaint C schedule property by
adverse possession.
Accordingly, the appeal fails and the same is dismissed. No
costs.
Sd/-
EASWARAN S.
JUDGE
jg
