Research › Search › Judgment

Kerala High Court · body

2014 DIGILAW 172 (KER)

P. Balakrishnan Nambeesan v. A. P. Meenakshyamma

2014-02-25

S.S.SATHEESACHANDRAN

body2014
Judgment : 1. The defendants in O.S.11/1992 on the file of Subordinate Judge's Court, Sulthanbathery are the appellants. Suit of the respondents for declaration of title, recovery of possession and injunction was decreed by learned Sub Judge, and hence the appeal. 2. Respondents in the appeal, who are the legal heirs of plaintiff, and, impleaded in the suit as additional plaintiffs 2 to 6, have filed Cross objections to the extent aggrieved by the nongranting of mesne profits claimed,and also against some of the findings made by the learned Sub Judge. 3. Appellants are hereinafter referred to as defendants, and respondents, as plaintiffs. 4. Suit was instituted before the Munsiff Court, Mananthavady, scheduling two items in the plaint, A and B schedule, seeking recovery of A schedule, a building situate in B schedule property, from defendants 1 to 4, for a decree of injunction against them from trespassing upon plaint B schedule property excluding the building, and from committing acts of waste and taking income therefrom. Suit claims were resisted by defendants setting up a rival claim of title and possession over the entire property including the building. Plaint was later amended for declaration of title and recovery of possession of B schedule property with mesne profits alleging that pending the suit defendants trespassed upon B schedule property. By the amendment effected valuation of the suit exceeded the jurisdiction of Munsiff Court, and, upon which the plaint was returned for presentation before the proper court. Plaint returned was presented before the Sub Court, Sulthan Bathery, and, on appearance of defendants to summons issued by that court the trial proceeded. In view of contentions raised by defendants 1 to 4 some more parties were impleaded as defendants 5 to 7 in the suit. After trial the suit was dismissed, and against which plaintiff preferred an appeal as A.S.377/1995 before this court. Pending that appeal plaintiff passed away and his legal heirs were brought in as additional appellants, who are the respondents in the appeal. Setting aside the decree of dismissal case was remanded for fresh disposal, allowing the appeal. Parties were also provided opportunity to adduce further evidence, if so advised. Pending that appeal plaintiff passed away and his legal heirs were brought in as additional appellants, who are the respondents in the appeal. Setting aside the decree of dismissal case was remanded for fresh disposal, allowing the appeal. Parties were also provided opportunity to adduce further evidence, if so advised. While remitting the case pointing out some of the questions involved for consideration on the disputed facts presented in the case with direction to the trial court to enter specific findings on them, serious exception was also taken over the nonframing of an issue on adverse possession raised by the defendants resisting recovery of possession. On remission except the production of and exhibiting a document, Ext.A22, by plaintiff, no further evidence was adduced by both sides. Issue No.4 previously framed in the suit was recast to consider whether the right of plaintiffs over the plaint properties have been lost by adverse possession and limitation. The evidence tendered consisted of PW1 and PW2 and Exts.A1 to A22 for plaintiffs, and, DW1 to DW5 and Exts.B1 to B39 for defendants, C1 to C4 (commission reports and plan) and Exts.X1 to X5 summoned and produced. Appreciating the pleadings and evidence learned Sub Judge upheld the title of plaintiff over plaint properties and decreed the suit allowing recovery of possession of the properties from defendants. Injunction and claim for mesne profits applied by plaintiffs were declined. Against the decree passed in favour of plaintiffs, defendants have filed the appeal, and against the declining of mesne profits and findings entered over issue No.3 and 6 the plaintiffs have filed their Cross objections. 5. Plaint B schedule property having an extent of 2 acres 46 cents comprising A schedule building is situate in R.S.177/2 Porunnannoor Village, Karingari desom in Wynad District. Admittedly, plaint B schedule property belonged to Mechilat Maruthomkara Tharavadu. Case of the plaintiff is that Parameswaran Nambeesan, a junior member of that tarwad, obtained the above property on lease from the karnavan, Kesavan Nambeesan, in 1920, and, later, he gifted his leasehold right in favour of his second wife, Lekshmi Amma, examined as DW3 in the case. Ext.A1 is a certified copy of the gift deed executed in favour of Lekshmi Amma. Ext.A1 is a certified copy of the gift deed executed in favour of Lekshmi Amma. Lekshmi Amma receiving a sum of Rs.650/- sold the house (A schedule) in the property, which was in a dilapidated condition, to the plaintiff, for removal of the structure and handing over of the vacant site Ext.A13 is the receipt issued by Lakshmi Amma receiving the sale price. First defendant then approached plaintiff to have temporary occupation of the house and permission given he occupied the building with his children. The building was therefore not demolished. Lekshmi Amma gifted B schedule property in favour of Viswa Hindu Parishad under Ext.A12 stating in that deed that the building situate in the property had already been sold. Plaintiff purchased B schedule property from Viswa Hindu Parishad under Ext.A15 sale deed and, thus, he became the title holder of the property. He has been remitting the revenue charges over the property eversince the sale as its owner. Before Lekshmi Amma executed Ext.A12 gift in favour of Viswa Hindu Parishad she had obtained certificate of purchase(Ext.A10) over two acres of property in B schedule from the Land Tribunal, and, Viswa Hindu Parishad, later, got purchase certificate over the remaining 46 cents under Ext.A14. All title, rights and interest over the property have been assigned in favour of plaintiff by Viswa Hindu Parishad under Ext.A15 sale deed. First defendant who was permitted to occupy A schedule building, later, with the other defendants, trespassed upon B schedule property after the institution of suit, was the case of plaintiff for recovery of possession of the property with building claiming mesne profits also. Defendants resisted the suit setting up a rival claim of title over B schedule property comprising the building. Parameswaran Nambeesan the executants of Ext.A1 had entrusted the plaint schedule properties to his sister Parvathy Amma in 1949 and she continued in possession and enjoyment of the property was their case. After her death, her rights over the property devolved upon her son Cheriya Madhavan Nambeesan, and son of her predeceased daughter settled in Bombay. Her son with the consent of the other legal heir executed Ext.B16 sale deed over 1 acre 62 cents comprising the house in B schedule to 5th and 6th defendants and the rest of the property in that schedule, 84 cents, under another sale deed, Ext.B35, in favour of 4th and 7th defendants. Her son with the consent of the other legal heir executed Ext.B16 sale deed over 1 acre 62 cents comprising the house in B schedule to 5th and 6th defendants and the rest of the property in that schedule, 84 cents, under another sale deed, Ext.B35, in favour of 4th and 7th defendants. Contending that neither Viswa Hindu Parishad nor plaintiff obtained any right over the plaint schedule properties these defendants asserted that they are continuing in possession and enjoyment of the property and building. They have prescribed title to the property by their adverse possession if at all plaintiff has got title, was their further challenge to contend that plaintiff is not entitled to any relief in the suit. 6. Court below framed the following issues for trial, among which issue No.4 read as recasted after remand to consider the plea of adverse possession raised by defendants. 1. Whether the suit valuation is correct and court fee paid is sufficient? 2. Whether plaintiffs have title over plaint A and B schedule properties? 3. Whether plaintiffs are in possession of plaint B schedule property? 4. Whether the right if any of the plaintiffs over the plaint schedule properties is lost by adverse possession and limitation? 5. Whether plaintiffs are entitled to recover possession of plaint A schedule property from the defendants? 6. Whether plaintiffs are entitled to injunction prayed for? 7. Whether the alternative prayer for recovery of plaint B schedule property from the defendants is allowable? 8. Whether plaintiffs are entitled to realise any amount as mesne profits from the defendants, if so, what is the quantum? 9. Reliefs and costs. Appreciating the materials produced with reference to the rival claim of title set up by the parties learned Sub Judge negativing the challenges raised by defendants upheld the title of plaintiff over the suit properties. Plea of adverse possession canvassed by defendants was found not established, and the plaintiff was allowed to recover the suit properties (A and B schedule) from the defendants on the strength of their title. Decree of injunction canvassed over B schedule property and mesne profits claimed from defendants were disallowed. 7. I heard learned senior counsel Sri.R.D.Shenoy, counsel appearing for appellants, and learned senior counsel Sri.S.V. Balakrishna Iyer appearing for respondents. Decree of injunction canvassed over B schedule property and mesne profits claimed from defendants were disallowed. 7. I heard learned senior counsel Sri.R.D.Shenoy, counsel appearing for appellants, and learned senior counsel Sri.S.V. Balakrishna Iyer appearing for respondents. Rival claim of title set up over the plaint properties by defendants with reference to the materials tendered by them, to substantiate their challenge against the decree,was canvassed by learned senior counsel Sri.R.D.Shenoy, but, that challenge was, rightly, not pursued. In the memorandum of appeal no specific ground or challenge has been raised to impeach the finding entered by learned Sub Judge rejecting the rival claim of title of defendants, based on the entrustment of plaint properties to Parvathy Amma, sister of Parameswaran Nambeesan, in 1949. Learned Sub Judge appreciating the materials tendered by defendants, both oral and documentary, found the rival claim of title canvassed by defendants meritless. Defendants have taken sale deeds from a legal heir of Parvathy and remitted revenue charges over the property, and also that they are in possession of the property, by themselves, would no way assist them in establishing their title to the property. If only their case that Parvathy Amma obtained entrustment of property from the Karnavan in 1949 is proved, then alone, claim of title canvassed by them would have significance and merit. The first and second defendant in their joint written statement filed, initially, contended that Parvathy Amma obtained the property by oral lease from Parameswaran Nambeesan and she continued in possession of the property as a tenant. If that was the case canvassed by those two defendants the other defendants resisting the claim of plaintiff contended that the property was entrusted to Parvathy Amma by Parameswaran Nambeesan for her maintenance and also of her children. Power of attorney (Ext X1) executed by Parameswaran Nambeesan in favour of his brother Madhavan Nambeesan in 1951, as noted by the learned Sub Judge, clearly demonstrated that Parvathy Amma was provided with other properties for taking income to meet her maintenance and of her children. Learned Sub Judge has rightly held that defendants failed to establish their rival claim of title over the property. Finding entered by learned Sub Judge that defendants have not established their title is unassailable. 8. Learned Sub Judge has rightly held that defendants failed to establish their rival claim of title over the property. Finding entered by learned Sub Judge that defendants have not established their title is unassailable. 8. The crucial question to be gone into in the case is whether plaintiff has title to the plaint property, and if so, whether recovery of possession claimed on the strength of his title is barred by adverse possession canvassed by defendants. Antecedent title over the property, admittedly, vested with Mechilat Marthomkara tarwad, and, at the time of execution of Ext.A1 gift, the executant, Parameswaran Nambeesan was the karanavan of that tarwad. When that be so, whether Ext.A1 executed by Parameswaran Nambeesan in favour of Lekshmi Amma, his second wife, over the plaint property belonging to the tarwad over which he claimed of having leasehold right under an oral lease from the previous Karnavan, is valid, and has it come into effect, is the question to be considered. Whatever be the challenges raised by defendants to impeach Ext.A1 gift deed it has to be noted that they examined Lekshmi Amma as one of their witnesses (DW3) to impeach Ext.A12 gift deed executed by her in favour of Viswa Hindu Parishad. Defendants in a suit can no doubt raise conflicting and contradictory defences to resist the claim of plaintiff, but, they cannot approbate and reprobate pressing upon conflicting contentions once the trial proceeds with recording of evidence. Lekshmi Amma was examined to impeach Ext.A12 gift deed and also to show that she had not issued Ext.A13 receipt to the plaintiff. She has given evidence that she never obtained possession of the property comprising the tarwad, she is residing in a building in a property lying east to the building occupied by first defendant and the property presently in her possession was obtained as lease from her husband. Her assertions as above are not sufficient to show that Ext.A1 gift deed executed in her favour by her husband does not relate to plaint property. The defendants have no case that Ext.A1 does not relate to plaint property. Defendants who have called DW3 to the box as their witness have not asked even a suggestive question to her over the validity of Ext.A1 or over the acceptance of that gift by her. The defendants have no case that Ext.A1 does not relate to plaint property. Defendants who have called DW3 to the box as their witness have not asked even a suggestive question to her over the validity of Ext.A1 or over the acceptance of that gift by her. Their attempt was only to impeach Ext.A12 gift deed executed by her over the property in favour of Viswa Hindu Parihad. Her title to the property under Ext.A1 was not challenged by defendants when she was examined as DW3. Property covered by Ext.A1 was gifted by her under Ext.A12 deed. When that be so, there is no merit in the challenges raised by defendants to impeach the validity of Ext.A1. 9. Ext.A1 was impeached contending it is only a certified copy. Learned senior counsel for defendants submitted that necessary foundation for reception of certified copy of the gift deed as secondary evidence, exhibited as A1, was not made in the case and so even if execution of the original deed was shown to be before 30 years the presumption under section 90 of the Evidence Act that the original deed was duly executed by executant is not available. I do not find any merit in the challenge over the acceptance of Ext.A1, certified copy of the gift deed, in evidence. The Apex Court in Sri.Lakhi Baruah v. Padma Kanta Kalita ( AIR 1996 SC 1253 ) has held that if necessary foundation is laid for admission of secondary evidence under section 63 of the Evidence Act a certified copy of 30 years old document, once received in evidence, would have the presumption under section 90 of the Evidence Act. Ext.A1, it is seen, has been accepted in evidence without any objection from the defendants. It is too late in the day to contend that it has been received in evidence without the foundation laid for its acceptance as secondary evidence. Any such objection should have been raised when Ext.A1 was tendered, and that having not been done, it is not open at this stage to contend that since foundation has not been laid for reception of the certified copy as secondary evidence presumption under section 90 of the Evidence Act is not available to that document. 10. Any such objection should have been raised when Ext.A1 was tendered, and that having not been done, it is not open at this stage to contend that since foundation has not been laid for reception of the certified copy as secondary evidence presumption under section 90 of the Evidence Act is not available to that document. 10. Title of the donor, executant of Ext.A12, over the plaint property, as having been obtained by her under Ext.A1 gift deed, is strengthened by the assignment of two acres in such property under the purchase certificate issued in her favour by the Land Tribunal. Though the above purchase certificate has been subsequently revoked after the suit at the instance of defendants that certificate was issued much earlier to Ext.A12 cannot be ignored. Revenue receipts evidencing payment of tax in her name (Exts. A2 to A6) over the property, Ext.A7 receipt over her payment of rent for the building to the tharawad, Ext.A8 certificate issued by panchayath showing her as owner of the building (A schedule), Ext.A9 building tax receipt issued in her name, and Ext.A11 certificate of registration issued under Section 14 of the Coffee Market Expansion Act amply demonstrate her title to the property. 11. In the above circumstance where title of the executant of Ext.A12, Lakshmi Amma over the plaint property is established, what remains to be considered is the validity of the above gift deed and also Ext.A15 sale deed executed in favour of plaintiff over the suit property. Ext.A12 gift deed is a conditional gift and where the condition imposed under that deed has not been fulfilled, and, also incapable of performance, it is contended, the gift would stand cancelled with property reverted to the donor. Property was gifted by the donor (DW3) for a charitable purpose, construction of orphanage and hospital by the done Viswa Hindu Parishad. When that object has not been fulfilled and the donee transferred the gifted property by sale to another the property would revert to the donor, is the argument raised relying on State of Uttar Pradesh v. Bansi Dhar and others ( AIR 1974 SC 1084 ). The donor examined as a witness by defendants, in her evidence, has denied the execution of Ext.A12 gift deed. That denial is nothing but a ruse to assist the defendants. The donor examined as a witness by defendants, in her evidence, has denied the execution of Ext.A12 gift deed. That denial is nothing but a ruse to assist the defendants. The question is whether defendants who are third parties can question the validity of the gift for the reason that the charitable purpose for which the gift was made has not been satisfied by the donee. Examination of the donor as a witness in the case would no way assist the defendants in impeaching the validity of the gift to contend that it was a conditional one and the condition imposed not being fulfilled the property would revert to the donor. Such challenge can be canvassed only by the donor or those who claim under her, and not by a third party. When donor was not even a party to the suit, it is futile, to impeach the validity of Ext.A12 gift deed placing reliance on the reported decision referred to above. 12. Ext.A12 is a registered gift whereby the property has been gifted to Viswa Hindu Parishad for a charitable purpose, construction of orphanage and hospital in the property. In the deed it is stated that the building in the property is not covered by the gift since it has already been sold. Even before execution of Ext.A12 gift deed plaintiff purchased the building which was in a dilapidated condition for a price of Rs.650/- agreeing to remove the structure and handover vacant possession to Lekshmi Amma, owner, (DW3), was his case. Ext.A13 receipt has been produced to prove the sale of building to plaintiff. Plaintiff has advanced a case that after his purchase of the building situated in the property the first defendant requested for temporary occupation in that building. Permission given for temporary occupation was misused and later he refused to vacate from the building according to plaintiff. First defendant and other defendants refuting that case have asserted their title and possession over the property. In such circumstances genuineness and validity of Ext.A13 receipt and also whether the Viswa Hindu Parishad the donee under Ext.A12 gift deed obtained possession of the property under the gift has crucial significance. First defendant and other defendants refuting that case have asserted their title and possession over the property. In such circumstances genuineness and validity of Ext.A13 receipt and also whether the Viswa Hindu Parishad the donee under Ext.A12 gift deed obtained possession of the property under the gift has crucial significance. The house in the property was totally dilapidated with one portion having already fallen down, and for removing the bricks, tiles, wooden pieces of the building, fixing a sale price of Rs.650/-, Lekshmi Amma sold that house to plaintiff, is the substance of the statement made in Ext.A13. That receipt is dated 11.6.1976. Though Ext.A12 gift deed contains a statement that building was not covered by that deed since it had already been sold the case set up by plaintiff over the sale of building in his favour under Ext.A13 and also permission extended by him to the first defendant to have temporary occupation of that building, has to be scrutinized not only with reference to the above statement in Ext.A12 but having regard to other circumstances disclosed by the materials produced. Before the Panchayat there was a proceeding over the ownership of building situate in plaint property between plaintiff and second defendant. Ext.B31 Order dated 11.9.1979 passed by the Executive Officer, Vellamundu Panchayat shows that the ownership of the building in the register of Panchayath was recognised in the name of second defendant. Proceedings before Panchayath over the disputes between 2nd defendant and plaintiff over the ownership of the building (A schedule), it is seen from ext.A31, commenced by a petition dated 21.12.1978 by 2nd defendant, Ext.A31 order states that 2nd defendant's ownership was recognised, taking note that there was no challenge over the construction and occupation of the building, and also on the inspection conducted. That decision has become final, and it is after such decision plaintiff instituted the suit for injunction over Minsiff Court. No evidence was tendered to show that the building was in a dilapidated condition and unfit for human accommodation before execution of Ext.A12, as alleged by plaintiff. Circumstances presented would show that in the assessment register of panchayat entries over the building continued for assessment and payment of tax and the building was shown under the occupation of second defendant and her family, Ext.B31 Order was passed recognising her as owner of the building. Circumstances presented would show that in the assessment register of panchayat entries over the building continued for assessment and payment of tax and the building was shown under the occupation of second defendant and her family, Ext.B31 Order was passed recognising her as owner of the building. In such circumstances Ext.A13 receipt produced by plaintiff cannot be given any value. His case that first defendant was permitted to have temporary occupation of the building, which remained unsupported by any evidence other than his interested version, cannot be accepted where it is shown that in a proceeding before the Panchayat ownership of the building claimed by second defendant was upheld and his claim was negative and that decision has become final without any further challenge. Suffice to state that under Ext.A13 receipt issued by DW3, who, infact, had disputed its execution, plaintiff has not obtained possession or right over the building. 13. Whether Ext.A12 has come into effect and has delivery of possession of the plaint property excluding the building passed on to the done Viswa Hindu Parishad on execution of that gift deed is the next question to be considered. Defendants to impeach Ext.A12 gift deed has examined DW2 and DW4, two office bearers of the Viswa Hindu Parishad, Karingari unit. Both of them have given evidence that the Karingari Unit of Viswa Hindu Parishad came into existence only in 1980 and neither the State Committee or Unit of the Parishad has got any immovable property by way of gift or otherwise in the place. DW2 of course would also state that from the State Committee Secretary of the Parishad he came to know that property obtained from Lekshmi Amma had been returned. Defendants have also examined Lakshmi Amma, donor of Ext.A12, (DW3) who would also deny the execution of the gift. Defendants are third parties to the transaction covered by the gift. Their challenges to Ext.A12 examining the aforesaid witnesses (DW2, 3 and 4) are hardly sufficient to show that the gift has not come into effect. The donor (DW3) who executed Ext.A12 has not impeached that registered deed under any process of law. I have already stated that her denial of execution of the gift has no value or merit. She had obtained title over the plaint property covered by Ext.A12 gift deed under Ext.A1 gift from her husband, which too was denied by her. The donor (DW3) who executed Ext.A12 has not impeached that registered deed under any process of law. I have already stated that her denial of execution of the gift has no value or merit. She had obtained title over the plaint property covered by Ext.A12 gift deed under Ext.A1 gift from her husband, which too was denied by her. Under such circumstance challenges made against the execution of Ext.A12 gift by the donor Lekshmi Amma at the instance of defendants, third parties to the transaction, have no merit at all. The defendants have set up a rival claim of title over the property under a totally different transaction and not under the owner of Ext.A12 gift deed. Ext.A12 gift deed, a registered deed,is having a presumption that it has been duly executed by the executant. Lekshmi Amma has not impeached that deed as provided by law on any ground, and her denial of execution is unworthy of acceptance, goes a long way in considering the validity of that deed. Suffice to state that the evidence tendered through DW2 to DW4 by defendants to challenge the execution of Ext.A12 gift deed by Lakshmi Amma, donor, and also transfer of her title in favour of Parishad, donee, under that deed, is unworthy of any merit. 14. The question is whether Ext.A12 gift has come into effect. That question has to be resolved examining whether there was acceptance of the gift and delivery of property, which are necessary to make the gift complete. In a gift under Mohammadan law delivery of possession over and above acceptance is essential to constitute a valid gift. But in all other cases acceptance of gift by the donee would give rise to a presumption that possession passed on from the donor to the donee. Very often where physical possession of the gifted property is with a third party or the donee is settled at a different place delivery of physical possession on execution of a gift in his favour would not be possible. In some cases the donor may retain possession imposing conditions over its enjoyment till his life, and there also physical possession can be obtained by the donee only after the life time of donor. In some cases the donor may retain possession imposing conditions over its enjoyment till his life, and there also physical possession can be obtained by the donee only after the life time of donor. So whatever be the contentions raised by defendants that they continued in physical possession of property would not be sufficient to rebut the presumption over the passing of legal possession over the property on transfer of title in favour of the donee under Ext.A12 gift deed. Whether transfer of title under gift with such legal possession would arrest or negate the claim of title to the property by a third party based on his adverse possession against the donor and also the donee, if it arises for consideration in a lis, of course, has to be decided on the facts and circumstances presented in the case. Acceptance of Ext.A12 gift deed by the donee Viswa Hindu Parishad is evidenced by its possession of the original gift deed, which had been handed over to the plaintiff on transfer of the gifted property to him under Ext.A15 sale deed. Viswa Hindu Parishad had obtained Ext.A14 purchase certificate over the remaining 46 cents of land from the Land Tribunal after Ext.A12 gift. Though that certificate has been revoked subsequently it can definitely be viewed as a circumstance that there was acceptance of the gift by donee. I do take note that plaintiff has not produced any material to show that mutation was effected in favour of Viswa Hindu Parishad, donee, after the gift and also payment of revenue charges over the property in its name, but, that cannot be viewed as a circumstance to hold that there was no acceptance of the gift. When title has passed on to the done on acceptance of the gift it has to be presumed that possession over the property also passed with such title. Anyone who claims possession over the property adverse to the donor or donee must establish his antecedent title to such property or obtaining of title by his adverse possession. When title has passed on to the done on acceptance of the gift it has to be presumed that possession over the property also passed with such title. Anyone who claims possession over the property adverse to the donor or donee must establish his antecedent title to such property or obtaining of title by his adverse possession. So much so, even if defendants have continued in occupation of the house, and also in enjoyment of the plaint property, at the time of execution and acceptance of Ext.A12 gift deed, by that circumstance alone no challenge can be set forth to assail the transfer of title and legal possession over the property in favour of donee under the gift. 15. Title and possession over the property passed on to Viswa Hindu Parishad under Ext.A12 gift deed. Parishad which obtained title and possession over the property transferred all its title and interest under Ext.A15 sale deed in favour of plaintiff. I have pointed out that Ext.A12 gift deed was a conditional gift would no way enable the defendants to impeach the gift or the transfer later made by the donee. Plaintiff has produced revenue receipt evidencing that pursuant to Ext.A15 sale deed mutation over the property has been effected in his name and he is paying revenue charges thereof. Ext.A15 sale deed can be assailed only if it is shown that before the transfer under that deed Viswa Hindu Parishad had lost title by the possession of property adverse to it by defendants and their obtaining of prescriptive title by such adverse possession. Other than setting up a rival claim of title over the property on the basis of entrustment of the property by karnavan in favour of his sister Parvathy in 1949, which has been found unacceptable,the defendants have not shown that they have prescribed title over the property by adverse possession before execution of Ext.A15 sale deed in favour of plaintiff. When such be the case finding of the court below that plaintiff has obtained title over the property under Ext.A15 sale deed, though for different reasons, as discussed above, has only to be upheld. 16. Affirming the finding on title over the property in favour of plaintiff by itself would not enable the plaintiff to claim recovery of possession from defendants who are admittedly in possession. 16. Affirming the finding on title over the property in favour of plaintiff by itself would not enable the plaintiff to claim recovery of possession from defendants who are admittedly in possession. Learned senior counsel on both sides have argued at length relying on good number of judicial pronouncements also, over their rival case on the claim of adverse possession canvassed by defendants to resist the recovery of possession. Learned senior counsel for plaintiffs contended that even the essential ingredients to constitute a plea of adverse possession are not set forth in the written statements filed by defendants and the plea canvassed by them militate against their rival claim of title set up over the property. On the other hand learned counsel for defendants submitted that suit was initially instituted before the Munsiff Court was in 1982. On return of the plaint consequent to the amendment effected the plaint was presented before sub court only in 1991. Such representation of plaint before the Sub Court constitute institution of a fresh suit before that court unless exemption under section 14 of the Limitation Act is extended for instituting such suit. No case of any exemption under section 14 of the Limitation Act has been pleaded nor granted by the court on re presentation of plaint before the Sub Court, is the submission of counsel. When that be so, on the facts involved in the case where the defendants have contended that their possession is adverse denying the title of plaintiff and also of his transferor Viswa Hindu Parishad, and it is also made out by materials placed, their plea of adverse possession has only to be upheld, according to the counsel. 17. Questions canvassed on the rival case presented over adverse possession claimed by defendants to resist recovery of possession call for detailed scrutiny of the materials placed in the case with reference to the judicial pronouncements applicable. But it is noticed that despite specific direction given by this court learned Sub Judge has neither applied his mind nor decided that question involved in the suit. Perusal of the records would show on remission except the reception of a document (Ext.A22) no further evidence was adduced. The case was heard and reserved for judgment by learned Sub Judge. But it is noticed that despite specific direction given by this court learned Sub Judge has neither applied his mind nor decided that question involved in the suit. Perusal of the records would show on remission except the reception of a document (Ext.A22) no further evidence was adduced. The case was heard and reserved for judgment by learned Sub Judge. Later he reopened the case, perhaps, noticing for the first time the direction in the remand order to consider the plea of adverse possession of defendants. After recasting issue No.(4) to consider that plea the order sheet shows the case was heard the same day and reserved for judgment and, later, disposed. Previously, while ordering remission this court has observed that the nonframing of an issue on adverse possession raised by defendants in the suit, with the other circumstances presented in the case, showed that the court below had virtually abdicated its 'function as a trial judge'. Recasting of issue No.4 to consider adverse possession after hearing parties and, then, posting the case for judgment would no way satisfy compliance of the remand Order. After such recasting of issue No.4, it is seen, no opportunity was provided to the parties to lead evidence on such issue, and learned Sub Judge after further hearing posted the case for judgment Where parties have not seriously objected to the recasting of issue No.4 over adverse possession in the manner indicated above, and also disposal of the case, of course, there is no need for further remission of the case for considering the issue over adverse possession provided it is shown that court below has appreciated that issue and entered finding thereof. However, looking into the finding entered on issue No.4 by learned Sub Judge, it is seen, he has turned down the plea of adverse possession simply stating that 'no evidence' was adduced by defendants in support over such plea. Observing that they had set up a rival claim of title over the property learned sub judge concluded that none of the ingredients to constitute adverse possession and limitation has been established by them in the case. The conclusion so formed by the learned Sub Judge, which cannot be considered as a finding, shows total nonapplication of mind to the question posed, and also failure to exercise his jurisdiction in examining the plea of adverse possession. The conclusion so formed by the learned Sub Judge, which cannot be considered as a finding, shows total nonapplication of mind to the question posed, and also failure to exercise his jurisdiction in examining the plea of adverse possession. The Apex Court in L.N.Aswathama and another v. P.Prakash (2009) 13 SCC 229 has considered the distinction between alternative and inconsistent plea by defendant over his claiming of adverse possession. Assertion of right of title over the suit property by defendant claiming such title from a person other than the plaintiff, to butress challenge of adverse possession against plaintiff, is only an alternative plea and not an inconsistent plea, and rejection of his claim of title would not foreclose his right to claim adverse possession, if otherwise established by materials, is the view expressed by apex court in the above decision. When that be so, the conclusion formed over issue No.4 by learned Sub Judge making some observations as indicated above, without analysing that issue on the materials produced in the case, and also the manner that issue was decided despite the specific direction given by this court in the remand order, cannot be sustained. Since no finding over adverse possession canvassed by defendants has been entered, as mandated under law, I find that for limited purpose to decide that issue the case has to be remitted setting aside the decree passed by the court below. 18. There is no merit in the challenges raised in the Cross Objections by plaintiffs. No evidence was let in by them to substantiate the claim of mesne profits. When plaintiffs have sought for recovery of possession amending the suit challenges raised against the findings on issue 3 and 6 have no merit. Where defendants admittedly continue in possession of the property plaintiffs cannot claim to be in possession and seek injunction, which are the questions covered by issue No.3 and 6. Perhaps those issues were framed when the suit was filed for injunction alone. Suffice to state that the Cross Objections are meritless. 19. On remission the question of adverse possession canvassed by defendants, that alone, shall be examined and decided by the court below after providing further opportunity to the parties to give evidence thereof, if so desired, to consider the entitlement of plaintiff to seek recovery of possession. Suffice to state that the Cross Objections are meritless. 19. On remission the question of adverse possession canvassed by defendants, that alone, shall be examined and decided by the court below after providing further opportunity to the parties to give evidence thereof, if so desired, to consider the entitlement of plaintiff to seek recovery of possession. The findings rendered with respect to Ext.A1, A12 and A15 deed shall be treated as conclusive and final and the only question that has to be decided is issue No.4 cast over the plea of adverse possession of defendants, and that alone. Setting aside the judgment and decree of the court below, the case is remitted for fresh disposal in accordance with law taking note of the observations made and directions given. Learned Sub Judge is directed to take note that the Order of remand is confined to enter a finding on issue No.4 and, then, on such finding to decide whether the decree applied for recovery of possession by the plaintiff, is allowable or not. Appeal is allowed as indicated, and Cross Objections are dismissed. Parties are directed to appear before the court below on 20.3.2014. Both parties are directed to suffer their costs in the appeal and cross objections.