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2003 DIGILAW 741 (KER)

Sarala v. The Little Flower Mission

2003-12-03

R.BHASKARAN

body2003
Judgment :- R. Bhaskaran, J. In S.A.No.181 of 1992, the appellants are the plaintiffs in O.S.No.432 of 1982 on the file of the Munsiff’s Court, Alappuzha. In S.A.No.184 of 1992, the appellants are the defendants in O.S.No.997 of 1992 on the file of the same court. While O.S.No.432 of 1982 was filed for declaration of title and injunction, O.S.No.997 of 1982 was filed by the defendant in the earlier suit for recovery of possession on the strength of title. Both the courts below decreed the suit in respect of item 2 of plaint schedule property in O.S.No.997 of 1982 and allowed the prayer for recovery of possession. The other suit was dismissed concurrently. Since the dispute relates to the same property it is sufficient if the facts in O.S.No.997 of 1982 is stated and the result of the other suit will depend upon the discussion and result in O.S.No.997 of 1982. 2. O.S.No.997 of 1982 is filed by the Little Flower Roman Catholic Church. According to the plaintiff, plaint item 1 is in the exclusive possession of the plaintiff. Plaint item 2 is having an extent of 12.5 cents and is in the possession of the defendant. It is unauthorized and unlawful. The suit is filed for declaration of title of the plaintiff and recovery of possession of item 2. The defendant contended that he is in absolute possession of 22 cents scheduled in O.S.No.432 of 1982 and that he has acquired title by adverse possession and limitation. Item 1 did not belong to the plaintiff. The property on the eastern side of the wall of the church is in the possession of the defendant and his predecessors since 1093 M.E. (1918). The description of item 2 is vague. The defendant is in possession of 22 cents and the extent shows as 12 ½ cents in item 2 is wrong. The plaintiff filed a replication reiterating the contention in the plaint and denying the allegations in the written statement. 3. In O.S.No.432 of 1982 the appellant/plaintiff contended that the suit property is portion of the property covered by Vempatta Adharam No.649/1093 (M.E) (1918) in favour of Kochu Pillai and his wife which right was assigned in favour of plaintiff’s mother as per document No.649/1093. 3. In O.S.No.432 of 1982 the appellant/plaintiff contended that the suit property is portion of the property covered by Vempatta Adharam No.649/1093 (M.E) (1918) in favour of Kochu Pillai and his wife which right was assigned in favour of plaintiff’s mother as per document No.649/1093. Out of the entire 44 cents, 22 cents was surrendered to the defendant/respondent church as per release deed executed 56 years ago as the church had obtained a sale deed from the original jenmi. Afterwards, the church constructed a wall separating the two properties 25 years ago. The plaintiff got the plaint schedule property as per gift deed No.795/63 from his mother. There was a mistake in the survey number described in the documents. Though the correct survey number was 227/9 the lease deed showed it as 225/4. The plaintiff has effected substantial improvements in the land. There was an O.A. for purchase of landlord’s right filed as O.A.No.519 of 1995. The O.A. was dismissed in view of the wrong survey number shown in the lease deed. In the counter filed in that O.A., the defendant, admitted that even prior to 1964 the defendant and his predecessors were in possession as trespassers of the plaint schedule property and it was found out only in 1964. In view of the dismissal of the O.A. and the appeals therefrom the plaintiff apprehended forceful entry by the defendant and hence the suit was filed. 4. In the written statement filed by the defendants, it was contended that the possession of the plaintiff of the plaint item is by trespass and the defendant has got title to the property. They therefore filed O.S.No.997 of 1982 for recovery of possession. The trial court found that by filing O.A.No.519 of 1975 against the respondent, the appellant has admitted title and therefore the possession of the appellant is only permissive. This finding is against the very contention of the respondent in the counter affidavit in that O.A. (marked as Ext.A3 in the present suit) that the appellant is a trespasser and is in unauthorized possession. On the basis of the above finding, the trial court decreed the suit for recovery of possession. According to the trial court, the position was covered by the dictum laid down in Kochu Ouseph v. Joseph & Others (1976 KLT 512 (F.B). In appeals, the appellate court also repeated the same reasoning and dismissed the appeals. 5. On the basis of the above finding, the trial court decreed the suit for recovery of possession. According to the trial court, the position was covered by the dictum laid down in Kochu Ouseph v. Joseph & Others (1976 KLT 512 (F.B). In appeals, the appellate court also repeated the same reasoning and dismissed the appeals. 5. In these two second appeals, the learned counsel for the appellants heavily relied on Ext.A3 counter affidavit filed in O.A.No.519 of 1975 wherein the respondents admitted that the plaintiff has trespassed and reduced into possession the property belonging to the Church and it was known only in 1964 when the properties belonging to the Church were demarcated. Therefore the possession of the appellant of item 2 in O.S.No.997 of 1982 prior to 1964 by trespass is admitted by the respondent and the suit is filed only in 1982 i.e, after 18 years. Therefore, he contended that here is a clear case of adverse possession made out and the decree for recovery of possession now granted is illegal and unsustainable. 6. The questions of law formulated in both the second appeals are the same and notice was issued on those questions, which read as follows: “A. Whether the title of the respondents in the plaint schedule property is lost by adverse possession. B. Having found that plaint schedule property does not from part of the lease deed of 1093 are the courts below justified in holding that the appellants have admitted title to the plaint schedule property in O.S.997/82. C. Are the courts below justified in applying the principles of law laid down in 1976 KLT 512. D. Whether the right of the respondents in the plaint property is barred by limitation in view of S.27 of the Limitation Act. The learned counsel on both sides addressed detailed arguments on the plea of adverse possession and limitation. 7.Before adverting to those contentions it has to be found whether reliance placed by the courts below on the Full Bench decision in Kouch Ouseph v. Joseph & Others (1976 KLT 512) is correct and whether that decision is applicable to the facts of this case. 8.In the case before the Full Bench, the plaint schedule properties were the subject-matter of a partition suit along with other items. Pending that suit, a Receiver was appointed for all the properties. 8.In the case before the Full Bench, the plaint schedule properties were the subject-matter of a partition suit along with other items. Pending that suit, a Receiver was appointed for all the properties. The Receiver granted lease for cultivation of the property pending suit. One of such lease granted licences to the 1st defendant in the subsequent suit for cultivation of banana, tapioca etc. When the Receiver was changed and a new Receiver took charge, the 1st defendant contended that he was not in possession under the Receiver but under the father of the plaintiff in that suit. When the plaintiff who was allotted those items in the partition suit wanted to get delivery in execution of final decree the 1st defendant obstructed and claimed as lessee and also claimed fixity of tenure. The Full Bench decision of this Court held that if in a suit for recovery of possession, the defendant sets up a lease, there is no burden on the plaintiff to prove possession within twelve years (under Art.142 of the old Limitation Act) and if the defendant fails to prove the lease the plaintiff is entitled to get a decree for recovery. To apply that principle the defendant in O.S.997 of 1982 must set up a tenancy under the plaintiff and he must fail to establish the lease. A reading of the written statement shows that there was no such contention. In fact the defendant has clearly stated that the plaintiff has no title or possession. The defendant asserted possession under the lease of 1093 M.E. Though the plaintiff claimed to be an assignee of the right of landlord the defendant did not attorn to the plaintiff and therefore it cannot be said that there is an admission of plaintiff’s title by the defendant. More over the Full Bench decision has only said that the burden is on the defendant to prove adverse possession and limitation. After the introduction of the new Limitation Act in 1963, there is no room for doubt in that aspect. According to the appellant the best way discharging the burden of proof is to rely on the admission of the plaintiff that the defendant has trespassed in the land in Sy.No.227/9 prior to 1964 and reduced it into his possession. That is clear from Ext.A3 counter filed in the O.A. by the defendant. Admittedly, the suit is filed after 18 years. That is clear from Ext.A3 counter filed in the O.A. by the defendant. Admittedly, the suit is filed after 18 years. The exact year of trespass is not stated. It is in any way prior to 1964 and it was round out only when the plaintiff wanted to demarcate the church properties. The courts below have relied on the fact that the defendant has filed an O.A. against the plaintiff for purchase of jenman right and therefore there is an admission of the plaintiff’s right. It is not correct. That O.A. was filed with regard to the property in Sy.No.225/4A and it was dismissed in view of the wrong survey number. It is in the counter filed in that O.A. that the crucial and fatal admission is made by the plaintiff and it is that counter affidavit which is produced as Ext.A3. Therefore, the reasoning of both the courts below is wrong and the judgments cannot be sustained on that reasoning. 9.An admission by the plaintiff is a substantive evidence which a defendant can rely on though it is not conclusive. In Bharath Singh v. Bhagirathi (AIR 1966 SC 405), the Supreme Court held as follows: “Admissions have to be clear if they are to be used against the person making them. Admissions are substantive evidence by themselves in view of Ss.17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under S.145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.” Again in Union of India v. Moksh Builders & Financiers (AIR 1977 SC 409), the Supreme Court reiterated the above principle after quoting the relevant paragraph in Wigmore on Evidence. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.” Again in Union of India v. Moksh Builders & Financiers (AIR 1977 SC 409), the Supreme Court reiterated the above principle after quoting the relevant paragraph in Wigmore on Evidence. 10.The learned counsel for the respondent, however, relied on the decision in Deva v. Sajjan Kumar (2003) 7 SCC 481) to contend for the position that to constitute adverse possession, there must be necessary animus. In that case, the concurrent findings of the courts below were upset by the High Court since the two courts did not take note of the admission by the defendant that he came to know that his possession was by encroachment only after the filing of the suit. The Supreme Court dismissed the appeal and confirmed the judgment of the High Court and held that substantial questions of law was involved to upset the findings of the courts below. In the present case, the necessary animus is admitted by the plaintiff. If on the other hand the plaintiff is to admit the tenancy claimed as early as in 1918, there is no question of recovery of possession as all the tenants upto 1964 are entitled to fixity of tenure. 11.The learned counsel for the appellant on the other hand relied on certain other decisions of Benches of three Judges of the Supreme Court holdings as follows: “The test is whether the appellants are able to show that they held lands for themselves and if they did so the mere fact there was acquiescence or consent at the inception on the part of the respondents make no difference. Since possession and enjoyment of the appellants was to the exclusion of the respondents’ brothers, for well over 30 years it is proved that the appellants were in possession and enjoyment openly and continuously in assertion of their right as owners. The entries in the revenue recorded continuously for 30 years would corroborate their plea of adverse possession and militates against the claim of the respondents”. (Parasinni v Sukhi (1993) 4 SCC 375). (emphasis supplied) In Bondar Singh v. Nihal Singh (AIR 2003 SC 1905) the plaintiff filed the suit for declaration that they have perfected title by adverse possession and also for injunction. The defendant’s predecessor was the admitted owner. (Parasinni v Sukhi (1993) 4 SCC 375). (emphasis supplied) In Bondar Singh v. Nihal Singh (AIR 2003 SC 1905) the plaintiff filed the suit for declaration that they have perfected title by adverse possession and also for injunction. The defendant’s predecessor was the admitted owner. He executed an unregistered sale deed in favour of the predecessor-in-interest of the plaintiff in 1931 and eversince then, the plaintiff’s predecessor and after him the plaintiff was in possession of the property. As in the case on hand, in Bander Singh’s case also, the defendant expressed the view that plaintiff was trespasser and was liable to be evicted and sent a notice in 1956. The Supreme Court observed that the notice was an admission on the part of the defendant therein that the plaintiffs were in possession of the suit land at least on the date of notice, i.e. 16-4-1956. It was also observed by the Supreme Court as follows. “Thus the plaintiffs were all along asserting that they were in possession of the land in their own right” (emphasis supplied). In the case on hand, though Ext.A3 is of the year 1975 only, it referred to the trespass by the defendant before 1964. The Supreme Court has found that the High Court interfered rightly when the lower courts ignored the crucial admissions in the notice with regard to the possession of the plaintiff and dismissed the suit. Krishitisk Chandra v. Commissioner of Ranchi (AIR 1981 SC 707) was decided by a three member Bench of the Apex Court. It is stated by the Supreme Court as follows: “All that the law requires is that the possession must be open and without any concealment. It is not necessary that possession must be so effective so as to bring it to the specific knowledge of the owner.” 12. The learned counsel for the respondent strongly relied on the decision of the Privy Council in Ejas Ali v. Special Manager, Court of Wards AIR 1935 PC 53). It is not necessary that possession must be so effective so as to bring it to the specific knowledge of the owner.” 12. The learned counsel for the respondent strongly relied on the decision of the Privy Council in Ejas Ali v. Special Manager, Court of Wards AIR 1935 PC 53). In that decision, it is stated that the principle of law if firmly established that a person who bass 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 claimed.” In the present case, when there is categoric admission by the plaintiff in the suit for recovery of possession filed in 1982 that the defendant was a trespasser even prior to 1964 and he reduced his property to his possession, I do not think that anything more is required to show that possession was hostile to the real owner. The learned counsel also relied on the decision in Achal Reddi v. Ramakrishna Reddiar (AIR 1990 SC 553). That is a case where the person who claimed adverse possession got into possession on the basis of an agreement for sale. The Supreme Court said that “the well-settled rule of law is that if a person is in actual possession under a title involving a due recognition of the owner’s title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well-recognised policy of law that possession is never considered adverse if it is referable to a lawful title.” Though the plaintiff in this case is claiming title on the basis of a sale deed and the defendant is found to be in possession of that property, the defendant was not claiming under the plaintiff, it cannot be said that he was in permissive possession of the property and the decision referred to by the learned counsel for the respondent will be of no help to him. 13. The learned counsel for the respondent also relied on the Division Bench decision of this Court in Kathaval Sudali v. Arumugha Panicker (1958 KLT 1009). In that case it is stated that possession is never considered adverse if it can be referred to a lawful title. 13. The learned counsel for the respondent also relied on the Division Bench decision of this Court in Kathaval Sudali v. Arumugha Panicker (1958 KLT 1009). In that case it is stated that possession is never considered adverse if it can be referred to a lawful title. If the plaintiff concedes lawful title to the defendant to remain in possession of the property, then there is no question of recovery of possession except in cases where recovery is permitted under law just as in the case of a licensee or in the case of a redemption of mortgage or in a case where the defendant is in possession as a lessee and the lessee is not entitled to any fixity of tenure. 14. The learned counsel for the respondent also relied on the decision in D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). In that case, the Supreme Court noted the observation of the High Court that there is no express plea of adverse possession except stating that after the purchase of the lands made by them, they remained in possession and enjoyment of the lands. That was a case where the land was allotted subject to condition of its non-alienation. The petitioner purchased the land from the original allottee. There was no plea of adverse possession raised by the petitioners before the courts below. It was held that in view of the prohibition in respect of alienation the alienee/petitioners derived no valid title. It was stated that the petitioners were required to plead and prove that they disclaimed the title under which they came into possession, set up adverse possession with necessary animus of asserting open and hostile title to the knowledge of the true owner and the owner allowed them without any let or hindrance to remain in possession and enjoyment of the property. The Supreme Court thereafter stated that in the absence of a crucial pleadings, which constitute adverse possession and evidence to show that the petitioners have been in continuous and uninterrupted possession of the lands in question claiming right title and interest in the lands in question hostile to the claim that they have perfected title by adverse possession. 15. Learned counsel for the respondent relied on the decision of the Supreme Court reported in Roop Singh Vs. Ram Singh (2000 (3) SCC 708). 15. Learned counsel for the respondent relied on the decision of the Supreme Court reported in Roop Singh Vs. Ram Singh (2000 (3) SCC 708). In that case the Supreme Court has held that the High Court cannot interfere under Sec. 100 unless there is substantial question of law. It was also held in that case that the plea of adverse possession is inconsistent with the plea of right to possession on the basis of part performance by operation of Section 53-A and permissive possession for long does not get converted to adverse possession. In this case the plaintiff has no case that the defendant is in permissive possession. The Supreme Court in Sitaramacharya Vs. Gururajacharya (1997 (2) SCC 548) has stated that admissions in the written statement in the earlier proceedings, though not conclusive in the absence of any reasonable and acceptable explanation, is a telling evidence heavily loaded against the respondent. When such an important admission has been overlooked by the High Court the Supreme Court has interfered and set aside the judgment of the High Court. In the present case the admission in the counter affidavit before the Land Tribunal marked as Ext. A3 has admitted in unequivocal terms that the defendant has trespassed into the plaint schedule property prior to 1964 and reduced it into his possession. In the light of the above admission I am of the opinion that the courts below have gone wrong in overlooking the same and granting a decree for recovery of possession in a suit filed in 1982. The decision in Deva’s case (2003) 7 SCC 481) is not applicable to the facts of this case. Even otherwise the Supreme Court in the decision reported in State of U.P. Vs. Ram Chandra (AIR 1976 SC 2547) has held as follows: “Even in cases where a High Court finds any conflict between the views expressed by larger and smaller benches of this Court, it cannot disregard or skirt the views expressed by the larger benches. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself”. 16. The proper course for a High Court in such a case is to try to find out and follow the opinion expressed by larger benches of this Court in preference to those expressed by smaller benches of the Court which practice, hardened as it has into a rule of law is followed by this Court itself”. 16. It is in the light of the above principles that the question of law formulated have to be answered. With regard to the first question of law formulated it is true that ordinarily the finding on the plea of adverse possession is a finding of fact. But as already noticed in the preceeding paragraphs when the finding of fact is entered into by ignoring crucial admission the High Court can interfere under Sec. 100. In the light of the above and the admitted fact that the defendant is in possession for more than 18 years prior to the filing of the suit and the defendant is not claming any permissive possession under the plaintiff and the possession is open, continuous and as of right the plea of adverse possession is to be answered in favour of the defendant. In the Commissioner’s plan the Commissioner has demarcated the property in the possession of the defendant. It is not known as to why the plaintiff waited for more than18 years for filing a suit even after knowing that the defendant is a trespasser as admitted in Ext.A3. It is true that the appellant has a case that he is in possession and on the basis of lease deed from the ultimate landlord and the defect is only in the recital of the survey number and the property is the same as is covered by the document. If that version is accepted then even according to the plaintiff there cannot be any recovery of possession as the plaintiff did not get any title in respect of that property except that portion which was surrendered by the plaintiff’s mother as per document executed 56 years ago. Since the admission in Ext. A3 is only in respect of 13 cents situated in Sy. No.227/9 and it is marked in red colour in Ext. C4 plan by the Commissioner the relief that can be granted to the appellant is confined to that extent only and not for 22 cents as claimed by the defendant. Since the admission in Ext. A3 is only in respect of 13 cents situated in Sy. No.227/9 and it is marked in red colour in Ext. C4 plan by the Commissioner the relief that can be granted to the appellant is confined to that extent only and not for 22 cents as claimed by the defendant. The Commissioner has demarcated the property and he has found out that the actual extent is 13.167 cents. 17. All the substantial questions of law framed in the appeal on which parties were heard are thus answered in favour of the appellant. The result of the above discussion is that O.S.432/1982 is decreed in so far as it relates to 13.167 cents out of 22 cents shown in the plaint schedule property in that suit and more specifically demarcated by the Commissioner in Ext. C4 plan in red shade. The suit filed by the respondent as O.S.997/1982 is decreed in part and is dismissed in respect of 13.167 cents demarcated by the Commissioner in Ext. C4 plan in red shade and decreed with respect to the remaining property. In the circumstances of the above the parties shall bear their respective costs throughout.