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2021 DIGILAW 751 (KER)

Ramachandran v. Omanakuttan

2021-08-26

N.ANIL KUMAR

body2021
JUDGMENT : The plaintiffs filed O.S.No.244/2006 before the Sub Court, Pathanamthitta (hereinafter referred to as 'the trial court') against the defendants for partition and separate possession of their share over the plaint schedule properties 1 to 5. The suit was in respect of the plaint schedule item Nos.1 to 4 agricultural lands and plaint schedule item No.4 movables. After the contest, a preliminary judgment and decree was passed by the trial court dividing the plaint schedule item Nos.1 to 4 properties by metes and bounds among the plaintiffs 1 to 4 and the defendants 1 and 2. The court further directed the plaintiffs and the defendants 1 and 2 to apply for passing a final decree for actual division of the properties. 2. Feeling aggrieved, the defendants 1 and 2 preferred A.S.No.176/2009 before the District Court, Pathanamthitta (hereinafter referred to as 'the first appellate court') challenging the decree for partition in respect of plaint schedule item No.1 property. However, the judgment and decree of the trial court were set aside in respect of the plaint schedule item No.1 property. The suit was dismissed as not maintainable in relation to the plaint schedule item No.1. 3. The appellants are the plaintiffs before the trial court, and the respondents 1 to 4, before the first appellate court. For the sake of brevity, the parties are hereinafter referred to as 'the plaintiff' and 'the defendant' according to their status in the trial court unless otherwise stated. 4. Having regard to the circumstances of this case and the question involved, it would be useful to draw a brief outline of the case at the outset. 5. In the suit aforesaid, the plaintiffs and defendants 1 to 4 are the children and legal heirs and successors-in-interest of late Lekshmikutty and late Raman Kunjuraman @ Kumaran Raman. The 5th defendant is the son of the 1st defendant. One Gopalakrishnan, a brother of the plaintiffs and defendants 1 to 4 had predeceased his parents. The parents of the plaintiffs and the defendants 1 to 4 are no more. The plaint schedule item No.1 property is an unregistered Government land which was brought under cultivation during the period 1969-70 by the plaintiffs and their late father. The property was cultivated with rubber, coconut trees, arecanut palms, pepper vines, etc. The said property was in joint and uninterrupted possession of the plaintiffs, the 1st defendant and their father. The plaint schedule item No.1 property is an unregistered Government land which was brought under cultivation during the period 1969-70 by the plaintiffs and their late father. The property was cultivated with rubber, coconut trees, arecanut palms, pepper vines, etc. The said property was in joint and uninterrupted possession of the plaintiffs, the 1st defendant and their father. Accordingly, all of them had 1/6th share each in the said property. Following the intestate death of their father on 21.11.2000, 1/6th share in item No.1 property had devolved upon the plaintiffs and the defendants 1 to 4. The plaint schedule item Nos.2 and 3 were originally owned and possessed by the deceased brother of the plaintiffs and the defendants 1 to 4. Item No.4 is the ancestral house which is situated in plaint schedule item No.3. Gopalakrishnan died unmarried and issueless on 05.03.1989. After the death of their mother, item Nos.2 to 4 properties had devolved upon the plaintiffs and the defendants 1 to 4. The household articles in item No.4 which were allegedly misappropriated by the 1st defendant are scheduled as item No.5. Accordingly, the plaintiffs have claimed 9/48th share each in item No.1 property and 1/8th share each in item Nos.2 to 5 properties. 6. However the contesting defendants 1 and 2 filed joint written statement contending that the plaint schedule item No.1 property is not correct and total extent of property is 3 acres and 25 cents. The said total extent of land was in the exclusive possession of the father of the plaintiffs and the defendants 1 to 4. As early as in February, 1985, father of the plaintiffs and the defendants 1 to 4 orally partitioned 3.25 acres of land by which he transferred the western 90 cents to the 4th plaintiff, the next eastern 27 cents to the 3rd plaintiff, the next eastern 27 cents to the 2nd plaintiff, the next eastern 27 cents to the 1st plaintiff and the next eastern 27 cents to Gopalakrishnan and the next eastern 27 cents to the 1st defendant and retained the easternmost 1 acre to himself. Accordingly, all the above said parties were enjoying the allotted parts individually. With respect to item No.1, it is contended that the deceased Goplalakrishnan, plaintiffs 2 and 3 and the 1st plaintiff had transferred their portion of item No.1 to the 1st defendant after accepting Rs.2,500/-each. Accordingly, all the above said parties were enjoying the allotted parts individually. With respect to item No.1, it is contended that the deceased Goplalakrishnan, plaintiffs 2 and 3 and the 1st plaintiff had transferred their portion of item No.1 to the 1st defendant after accepting Rs.2,500/-each. It is also contended that on 24.1.1986, the father of the 1st defendant received a sum of Rs.39,000/-from the 1st defendant and had transferred his 1 acre in item No.1. Accordingly, it is contended that the plaint schedule item No.1 is not partible. 7. Both sides adduced oral and documentary evidence. PWs.1 and 2 were examined and marked Exts.A1 to A6 on the side of the plaintiffs. CW1 was examined and marked Exts.C1 to C3. On the side of the defendants, DWs.1 and 2 were examined and marked Exts.B1 to B5. 8. The first appeal was confined to the legality, maintainability and sustainability of the judgment and decree of the trial court in respect of plaint schedule item No.1 property only. Admittedly, the plaint schedule item No.1 is a Government land, over which the plaintiffs and the defendants have no manner of proprietary title. The plaintiffs and defendants have no case that they have obtained the property by virtue of a valid title. They have no case that they have perfected title over the plaint schedule property by adverse possession and limitation in continuation of their predecessor-in-interest. According to the plaintiffs and the defendants, their father Raman Kunjuraman @ Kumaran Raman was in exclusive possession and enjoyment of the said property having an extent of 2.25 acres of land. There are rubber trees situated in the plaint schedule property. According to the plaintiffs, the rubber trees were replanted as early as in the year 1996. 9. During the trial, an Advocate Commissioner was deputed who filed Exts.C1 to C3. The Commissioner reported that the plaint schedule item No.1 property is planted with rubber. The suit was filed for partition without the junction of the State in the party array. However, the trial court passed a preliminary decree partitioning plaint schedule item No.1 among the plaintiffs and defendants 1 and 2. Challenging the partition over plaint schedule item No.1, the defendants 1 and 2 preferred a first appeal. The first appellate court dismissed the appeal. At the same time, it was found that since the Govt. However, the trial court passed a preliminary decree partitioning plaint schedule item No.1 among the plaintiffs and defendants 1 and 2. Challenging the partition over plaint schedule item No.1, the defendants 1 and 2 preferred a first appeal. The first appellate court dismissed the appeal. At the same time, it was found that since the Govt. was not a party to the suit, the suit was dismissed in respect of item No.1 property as not maintainable. The first appellate court found that there is no evidence to show that the parties have been in possession of the property for a considerably long time. According to the first appellate court, the plaintiffs cannot maintain a simple suit for partition without seeking declaration of their title or interest over the plaint schedule item No.1 property. In other words, it was held that a self-serving suit for partition without impleading the original owner of the property into the party array and without having a substantial prayer for declaration of their title or interest over the property cannot stand. 10. When this R.S.A. came up for consideration on 12.1.2016, this Court admitted the appeal on the following substantial questions of law :- I. Did the court below go wrong in not finding that possession over immovable property by itself is a substantive right recognised by law and that the said interest is heritable, divisible and transferable? II. Did the lower appellate court commit a serious error in law by holding that no suit for partition is maintainable based on the joint possessory right of parties without making the owner of property in party array? III. Did the lower appellate court go wrong in holding that a suit for partition by persons having possessory right over Government land is not maintainable without making State as a party? IV. Is it perverse in law to hold that no suit for partition is maintainable without seeking a declaration of title over the property sought to be partitioned? V. Did the lower appellate court go wrong in non suiting plaintiffs with respect to plaint scheduled item No.1 property even after they proved that they are in joint possession over the same in the facts and circumstances of this case? VI. Did the lower appellate court go wrong in setting aside the judgment and decree of the trial court, in the facts and circumstances of this case? 11. VI. Did the lower appellate court go wrong in setting aside the judgment and decree of the trial court, in the facts and circumstances of this case? 11. Heard Sri.Jacob P.Alex, the learned counsel for the appellants and Sri.P.V.Jayachandran, the learned counsel for the respondents. 12. The learned counsel for the appellants contended that possession by itself is a substantive right recognized by law and all incidents attached to it and that interest is heritable, divisible and transferable. Elaborating on the submission, the learned counsel for the appellants submitted that such interest referred to as possessory title and a person having such interest is entitled to enforce those rights against the entire world except those who have a better title or right than him. The learned counsel for the appellants further argued that the first appellate court committed a serious error in law in holding that no suit for partition is maintainable based on the joint possessory right of the parties without making the owner of the property in the party array. It was further submitted that first appellate court went wrong in non-suiting the plaintiffs with respect to the plaint schedule item No.1 property even after the plaintiffs adduced reliable evidence to prove that they have been in joint possession of the plaint schedule item No.1 property. 13. Per contra, the learned counsel for the contesting respondents submitted that the 1st defendant has been in possession of an area of 2.35 acres of land inclusive of plaint schedule item No.1 in exclusion of others. It was contended that plaint schedule item No.1 property is not partible and the plaintiffs have no possessory right over the same. 14. The first appellate court held that the plaint schedule item No.1 is not partible. Admittedly, plaint schedule item No.1 is a Govt. land. The possessory right over the plaint schedule item No.1 is sought to be partitioned. The first appellate court held that the land in question is a Govt. land and that the State Govt. is not made as a party in the suit. The first appellate court declined the prayer for partition over the plaint schedule item No.1 presumably for the reason that it is inequitable on the part of the court to grant a decree in respect of a Government land without impleading the Government as a party to the suit. is not made as a party in the suit. The first appellate court declined the prayer for partition over the plaint schedule item No.1 presumably for the reason that it is inequitable on the part of the court to grant a decree in respect of a Government land without impleading the Government as a party to the suit. It is true that the plaint schedule item No.1 is a Government land and the State was not arrayed as one of the defendants in the suit. 15. It is settled principle of law that an unauthorised occupant of a Government land who acquired possessory title has a valid title against all the world except the Government which is the true owner. The parties have been in possession of the plaint schedule item No.1 property on the date of suit. It is true that the plaintiffs have not set up a case of adverse possession over the plaint schedule item No.1 property to claim title over the property. They have claimed that they have been in possession of the property in continuation of their predecessor-in-interest and the said possessory right is partible. In Philip and others v. Skaria and others [ 1987 (1) KLT 213 ] a learned Single Judge of this Court explained the impact and nature of right claimed by a person in possession of a Government land. Paragraph 8 of the judgment is relevant in this context and is extracted as hereunder:- “8. Possession by itself is a substantive right recognised by law. Apart from ownership it has got all the legal incidents attached to it. Even before acquiring statutory rights by adverse possession or otherwise he has got well defined rights in the property. As against the whole world except those who are having better right or title than him his possessory title will bold good and must be allowed to be in force. Possession is not title only against those who are having better right or title. Possessory title is heritable, devisable and transferable. Possessory title is distinct from proprietary title.” 16. From the judgment of the first appellate court it is seen that the only finding of the trial court which was under challenge before the first appellate court was the one relating to plaint schedule item No.1. Therefore, the first appellate court considered only the said aspect. Possessory title is distinct from proprietary title.” 16. From the judgment of the first appellate court it is seen that the only finding of the trial court which was under challenge before the first appellate court was the one relating to plaint schedule item No.1. Therefore, the first appellate court considered only the said aspect. It is a case where both parties could not prove their absolute title to the plaint schedule item No.1. Admittedly, plaint schedule item No.1 is a puramboke land. They have claimed limited possessory right over the plaint schedule property. The question that arises for consideration in this appeal is as to whether in the light of the finding regarding joint possession, the plaintiffs could seek partition over plaint schedule item No.1 without the junction of the Government in the party array. 17. On a conjoint reading of the pleadings and deposition of PW1 and DW2 would show that the plaint schedule item No.1 property has been in joint possession of the plaintiffs and the 1st defendant. It was also brought out from the commission report that the property is cultivated with rubber, coconut trees, arecanut palms and pepper vines. In Vavvakkavu Muslim Thaikkavupally v. Narayanan Purushan [ 1991 (2) KLT 477 ], Packiyam Ammal & others v. Pattu Ammal & others [1999 KHC 3552] and Appukuttan Chettiyar v. Lathikadevi Amma [ 2005 (1) KLT 260 ], it was held that the possessory right can be claimed as between persons who assert rival claims over Government land and that in such actions the State need not be a party subject to the rider that the Government will not be bound by any such decrees. Such being the legal position, the view of the first appellate court that the Government ought to have been made a party to the suit is untenable particularly in view of the decisions in Philip's case (supra), Kuttan Narayanan v. Thomman Mathai [ 1966 KLT 1 ], Rev.Fr.K.C.Alexander v. N.S.S. Ltd. [ 1966 KLT 333 ] Rame Gowda (dead) by LRs. v. M.Varadappa Naidu (dead) by LRs and another [ (2004) 1 SCC 769 ], Pathukutty and another v. Aisakutty and others [ 2014 (2) KHC 212 ] and Poona Ram v. Moti Ram (D) Th. LRs. & others [ AIR 2019 SC 813 ]. v. M.Varadappa Naidu (dead) by LRs and another [ (2004) 1 SCC 769 ], Pathukutty and another v. Aisakutty and others [ 2014 (2) KHC 212 ] and Poona Ram v. Moti Ram (D) Th. LRs. & others [ AIR 2019 SC 813 ]. All the above cases, dealing with dispossession of the persons in occupation of the property without title by trespassers, considered and affirmed the above legal position. Hence it is settled law that even before the acquisition of statutory title by adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in the property. This possessory right is heritable, divisible and transferable as distinct from proprietary title. The Land Conservancy Act, 1957 prohibits only regarding matters for in the Act and the Rules. In Packiyam Ammal's case (supra) this position has been unmistakably clarified in paragraph 14 of the judgment as hereunder:- “14. In regard to item No.10, the only reason for dismissing the suit was that the family is not having title to the property. Under Ext.A2, it is found that the family is in possession. It could be a Government land. The possessory right continues in the family. Any arrangement between the members of the family may not bind the Government. But, as between them, it has to be treated as a family asset and available for partition. A preliminary decree also will have to be passed with regard to item No.10.” 18. Therefore, this Court is of the view that the trial court had examined the matter in the correct perspective and had rightly come to the conclusion that the plaint schedule item No.1 is partible. The findings of the trial court based on proper analysis and sound reasoning do not call for any interference. The first appellate court has been clearly in error in interfering with the finding of the trial court in relation to item No.1 property. The crux of the matter is that the plaintiffs who assert possessory right over the plaint schedule item No.1 property have succeeded to show that the parties are under settled or established possession of the property in continuation of their predecessor-in-interest. This possessory right is heritable, divisible and transferable. The possessory right continues with the plaintiffs and the defendants in continuation of their predecessor-in-interest. This possessory right is heritable, divisible and transferable. The possessory right continues with the plaintiffs and the defendants in continuation of their predecessor-in-interest. The possessory right over plaint schedule item No.1 is liable to be treated as a family asset and is available for partition. However, any arrangement between the members of the family by way of partition or some other arrangement may not bind the Government. It follows that the Government is at liberty to restore the Government land in accordance with law. The aforesaid substantial questions of law have been answered as hereinabove. For what has been discussed hereinabove, the appeal succeeds. The appeal is allowed. Consequently, the judgment and decree of the trial court stand restored. There will be no order as to costs. Pending applications, if any, stand closed.