Research › Search › Judgment

Kerala High Court · body

2026 DIGILAW 119 (KER)

Kuttikrishnan v. Suchetha, D/O. Prabhakaran

2026-02-06

EASWARAN S.

body2026
JUDGMENT : Easwaran S., J. The plaintiff in OS No.27/2010 on the files of the Munsiff's Court, Alathur, a suit for recovery of possession, has come up in the present second appeal challenging the concurrent findings rendered against him. 2. The brief facts necessary for the disposal of the appeal are as follows: The plaint schedule property was allotted to the share of the plaintiff as item No.1 of D schedule to the partition deed No.754/1968 of SRO, Nenmara. Since one of the sharers had not signed the document, yet another document was executed in the year 1970 with the same stipulation. Thereafter, the plaintiff was in exclusive possession and enjoyment of the plaint schedule property. In the meanwhile, the defendant preferred OS No.90/2009 before the Munsiff’s Court, Alathur and obtained a decree restraining the plaintiff from entering into the plaint schedule property. Since the suit was decreed, the plaintiff was deprived of enjoying the property, and hence, the suit was filed for recovery of possession of the plaint schedule property from the defendant on the strength of title. The defendant entered appearance and resisted the suit contending that the property was not allotted to the sharers as per the partition deed and that there was an agreement to execute an actual partition deed within 30 th Makaram 1158 and that the properties were not in possession of the sharers in accordance with the partition effected in the year 1968, but on the basis of their prior possession of the properties. The plaint schedule property was handed over to the defendant by the plaintiff and his three brothers by executing an assignment deed on 24.5.1982 and thereafter, the property is in her exclusive hands. Since the plaintiff was divested of the possession of the property from 1982 onwards, the claim of the plaintiff is lost by adverse possession. On behalf of the plaintiff, Ext.A1 was marked and PW1 was examined. On behalf of the defendant, Exts.B1 to B4 were marked and DW1 and DW2 were examined. The trial court, on appreciation of oral and documentary evidence, came to the conclusion that though the plaintiff has title over the property, the same was divested by adverse possession, because the defendant was holding the property from 1982 onwards, and, accordingly, dismissed the suit. Aggrieved, the plaintiff preferred AS No.139/2011 before the Additional District Court-III, Palakkad. The trial court, on appreciation of oral and documentary evidence, came to the conclusion that though the plaintiff has title over the property, the same was divested by adverse possession, because the defendant was holding the property from 1982 onwards, and, accordingly, dismissed the suit. Aggrieved, the plaintiff preferred AS No.139/2011 before the Additional District Court-III, Palakkad. The first appellate court, on re-appreciation of evidence, came to the conclusion that the findings of the trial court do not require interference and accordingly, dismissed the appeal and hence, the present second appeal. 3. On 4.9.2015, this Court admitted the appeal and issued notice on the following substantial questions of law : (A) Has not the lower appellate court failed to see that, as the Defendant’s case that her possession originated through permission and based on Ext.B1 unregistered partition deed, can never be adverse possession? (B) If possession is found to be permissive at the inception, can the possessor prescribe or sustain title by adverse possession without specifying the date on which such permissive possession became adverse?” 4. Heard Sri.S.V.Balakrishna Iyer, the learned Senior Counsel assisted by Sri.P.B.Subramanyan, appearing for the appellant/plaintiff and Sri.K.S.Hariharaputhran, the learned counsel appearing for the respondent/defendant. 5. Sri.S.V.Balakrishna Iyer, the learned Senior Counsel appearing for the appellant/plaintiff, contended that the findings of the courts below are vitiated by perversity and the courts below have failed to appreciate the correct proposition of law canvassed by the appellant/plaintiff. Once the title of the plaintiff is proved, then, in order to sustain the plea of adverse possession, the defendant is obliged to adduce evidence. It is further stated that in a case where the possession is permissive, the defendant cannot claim adverse possession. In the present case, the defendant does not have a case that she came into possession of the property by any other means than Ext.B1. Therefore, it is pointed out that once the possession is traced to Ext.B1, it is inevitable for this Court to hold that the same is an impermissible occupation and not otherwise. In support of his contentions, relied on the following decisions: 1. M.Radheshyamlal v. V.Sandhya and Anr. [2024 LiveLaw (SC) 245 : 2024 INSC 214 ] 2. Uttam Chand v. Nathu Ram [ AIR 2020 SC 461 : 2020 (1) KLT 1062 (SC)]; 3. Narasamma and Others v. A.Krishnappa (Dead) Through LRs [ (2020) 15 SCC 218 ] ; 4. In support of his contentions, relied on the following decisions: 1. M.Radheshyamlal v. V.Sandhya and Anr. [2024 LiveLaw (SC) 245 : 2024 INSC 214 ] 2. Uttam Chand v. Nathu Ram [ AIR 2020 SC 461 : 2020 (1) KLT 1062 (SC)]; 3. Narasamma and Others v. A.Krishnappa (Dead) Through LRs [ (2020) 15 SCC 218 ] ; 4. G.Krishnareddy v. Sajjappa (D) by Lrs. & Anr. [2011 SAR (Civil) 708] & 5. T.Anjanappa and Others v. Somalingappa and Another [ (2006) 7 SCC 570 ] 6. Per contra, Sri.K.S.Hariharaputhran, the learned counsel appearing for the respondent/defendant, countered the submissions of the learned Senior Counsel and contended that when possession of the defendant is traced to an unregistered deed by which the owner of the land intended to convey the right title and interest, the title holder cannot thereafter sustain the plea of recovery because he has been divested of the right title and interest. It is further contended that a reading of Ext.B1 document would clearly show that a permanency was intended to be attached to the possession of the defendant because of the fact that the plaintiff and other brothers were of the view that the allotment of the share to the defendant was inequitable and that the defendant was required to be conferred with more shares. Merely because Ext.B1 document was not registered, that by itself will not denude its efficacy, and the same could be looked into for the purpose of ascertaining the nature of possession. In support of his contentions, relied on the following decisions: 1. Achal Reddi v. Ramakrishna Reddiar and Others [ (1990) 4 SCC 706 ] ; 2. Kshitish Chandra Bose v. Commissioner of Ranchi [ (1981) 2 SCC 103 : 1981 KHC 534] 3. Kerala State represented by the Chief Secretary, Trivandrum and Others v. Brijit and Others [2018 (2) KHC 521]; 4. Gangadharan P.K. And Others v. Vallikunnam H.M.I. Vividhoddesa Sahakarana Sanghom and Others [2014 KHC 3050]; 5. Devaki Pillai v. Gouri Amma [2003 KHC 71 : 2003 (1) KLT 421] 6. Raman v. S.Devadasa Maller and Others [1991 KHC 16 : 1991 (1) KLJ 377 ] 7. I have considered the rival submissions raised across the bar, perused the judgments rendered by the courts below and the records of the case. 8. Devaki Pillai v. Gouri Amma [2003 KHC 71 : 2003 (1) KLT 421] 6. Raman v. S.Devadasa Maller and Others [1991 KHC 16 : 1991 (1) KLJ 377 ] 7. I have considered the rival submissions raised across the bar, perused the judgments rendered by the courts below and the records of the case. 8. In order to answer the substantial questions of law, one needs to consider the exact scope of the right conferred on the defendant by Ext.B1 document. Clauses 3 & 4 of Ext.B1 document read as under: 9. A cursory glance at clause 3 of Ext.B1 shows that it is intended for the purpose of cultivation for a period of one year beginning from 1982 (corresponding to 1157 ME). The period up to which the possession was permitted for cultivation was Kanni 1158 ME, which corresponds to September-October, 1983. 10. But, when we come to clause 4, it gives an indication that the defendant has been given absolute possession to hold the property and do whatever she wants. The respondent contends that clause 4 must be read in isolation, which indicates the intention of the parties, i.e. to confer an absolute right on the defendant to hold the property. The question before this Court is whether clause 4 of Ext.B1 can be read in isolation. 11. Going by the well-known principle of construction of a deed, this Court must adopt a construction which will aid in the furtherance of the intention of the parties for which the deed is executed. If, as contended by the learned counsel for the respondent, the parties intended to confer an absolute right on the defendant, nothing prevented them from executing a registered sale deed in favour of the defendant, nor from mentioning anything with regard to divesting their title over the plaint schedule property. 12. Read as may, this Court could not find any clause in Ext.B1 which would show that the true owners intended to divest themselves of the entire right title and interest over the property. Therefore, this Court finds itself unable to subscribe to the contention of the learned counsel appearing for the respondent and to read clause 4 of Ext.B1 in isolation. 13. That apart, if the intention of the parties was to confer an absolute right on the defendant, the earlier clause need not have been incorporated. Therefore, this Court finds itself unable to subscribe to the contention of the learned counsel appearing for the respondent and to read clause 4 of Ext.B1 in isolation. 13. That apart, if the intention of the parties was to confer an absolute right on the defendant, the earlier clause need not have been incorporated. Therefore, this Court is of the view that clauses 3 and 4 must be read together and, at any rate, the true purport of Ext.B1 is nothing but to grant possession to the defendant for the purpose of carrying out cultivation and not otherwise. 14. The law on the plea of adverse possession is now well settled. In T.Anjanappa and Others v. Somalingappa and Another [ (2006) 7 SCC 570 ] , the Supreme Court held that a mere possession however long does not necessarily mean that it is adverse to the true owner. Paragraph 20 of the decision reads as under: “20. It is a well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.” 15. In G.Krishnareddy v. Sajjappa (D) by Lrs. & Anr. [2011 SAR (Civil) 708] , the Supreme Court held that if a document evidences that it is only a transfer of possession of land by way of allotment and that the clauses of the grant do not state that it is an absolute conveyance of the land by the State Government, the principle of adverse possession cannot be incorporated. 16. [2011 SAR (Civil) 708] , the Supreme Court held that if a document evidences that it is only a transfer of possession of land by way of allotment and that the clauses of the grant do not state that it is an absolute conveyance of the land by the State Government, the principle of adverse possession cannot be incorporated. 16. In Narasamma and Others v. A.Krishnappa (Dead) Through LRs [ (2020) 15 SCC 218 ] , the Supreme Court held that a plea of adverse possession and a plea of title cannot be taken together and that such a plea will not go together. 17. In Uttam Chand v. Nathu Ram [ AIR 2020 SC 461 : 2020 (1) KLT 1062 (SC)] , the Supreme Court held that when the defendants have not admitted the vesting of the property with the plaintiff, though a continuous possession could be found out, such possession unless it is proved that it is hostile to the true owner of the suit property, the plea of adverse possession cannot be sustained. 18. In Mallikarjunaiah v. Nanjaiah [(2019) 15 SCC 756] , the Supreme Court held that mere continuous possession, however long, qua its true owner, is not sufficient to sustain the plea of adverse possession, unless it is proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property with knowledge of the true owner. 19. The ratio decidendi culled out from the above decision would no doubt establish that in order to sustain the plea of adverse possession, there should be, (a) an admission of title of the plaintiff; (b) the possession must be continuous and hostile with animus, and (c)it should not be permissive. 20. In the present case, it is beyond cavil that the defendant came into possession of the plaint schedule property under Ext.B1. But then, she set up a claim of title stating that there was an intention to convey absolute right over the property and that she had an absolute right as per clause 4 of Ext.B1 deed, which would indicate that the title of the plaintiff was divested. 21. This Court has already found that the defendant cannot fall back on clause 4 and cannot require the court to read clause 4 of Ext.B1 in isolation, and that the document as a whole must be read. 22. 21. This Court has already found that the defendant cannot fall back on clause 4 and cannot require the court to read clause 4 of Ext.B1 in isolation, and that the document as a whole must be read. 22. However, according to Sri.K.S.Hariharaputhran, the learned counsel appearing for the respondent/defendant, once the title holder divests his right title and interest over the property, then he cannot maintain a suit for recovery of possession, even if the defendant was put in possession pursuant to an unregistered deed. In support of his contention relied on the decision of the Supreme Court in Achal Reddi v. Ramakrishna Reddiar and Others [(1990) 4 SCC 706] . In the aforesaid decision, the Supreme Court held that in a case where the owner of the property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding, that from that time onwards, he shall have no right of title over the property, the owner does not thereafter retain any vestige of right in regard to the property and that his mental attitude towards the property is that it has ceased to belong to him altogether. Thus, the transferee, after getting possession, retains the same with a clear animus that he has become the absolute owner of the property. 23. This Court is afraid that the principles laid down as aforesaid may not apply to the facts of this case. In the present case, Ext.B1 cannot be construed as an unregistered sale deed, but it could only be construed as an executory contract of sale. The reason for this Court to arrive at such a conclusion is that had such an intention been attached to Ext.B1, then the clauses under Ext.B1 would have been definitely worded with a clear indication that the plaintiff's right over the property stood divested from the date on which Ext.B1 was executed. 24. In Kshitish Chandra Bose v. Commissioner of Ranchi [ (1981) 2 SCC 103 : 1981 KHC 534] , the Supreme Court held that it is not necessary that the possession must be effective so as to bring it to the specific knowledge of the owner, in order to constitute the plea of adverse possession. 24. In Kshitish Chandra Bose v. Commissioner of Ranchi [ (1981) 2 SCC 103 : 1981 KHC 534] , the Supreme Court held that it is not necessary that the possession must be effective so as to bring it to the specific knowledge of the owner, in order to constitute the plea of adverse possession. In the considered view of this Court, in the light of the subsequent decision of the Supreme Court and also in view of the fact that in the present case, the defendant claimed possession only under Ext.B1, such possession being permissive in nature, the principle laid down therein may not apply to the facts of the present case. 25. Next, it is contended by the learned counsel appearing for the respondent that the plea of adverse possession and a prescriptive title may go together and in support of his contention, relied on the decision of this Court in Kerala State represented by the Chief Secretary, Trivandrum and Others v. Brijit and Others [2018 (2) KHC 521] , wherein a learned Single Judge of this Court held that the decision of this Court in George v. Balakrishnan [2014 (4) KHC 725 : ( 2014 (4) KLT 788 ] is no longer a good law. In the above case, this Court was called upon to decide as to whether a plea of prescriptive title and adverse possession may go together and while holding so, the learned Single Judge of this Court held that the decision in George (supra) is no longer a good law, and that the findings in George's case, that the decisions in Raman v. S.Devadasa Maller and Others [1991 KHC 16 : 1991 (1) KLJ 377 ] and Devaki Pillai v. Gouri Amma [2003 KHC 71 : 2003 (1) KLT 421 ] are no longer a good law, is an incorrect view and that the principles laid down by this Court in those decisions hold good. 26. This Court is unable to agree with the views of the learned Single Judge in Brijit (supra). But however, in the context of the present claim, it may not be necessary for this Court to refer the questions before the Larger Bench because in the facts of the present case, the issue as to whether a claim of prescriptive title and adverse possession will go together or not, does not arise for consideration. But however, in the context of the present claim, it may not be necessary for this Court to refer the questions before the Larger Bench because in the facts of the present case, the issue as to whether a claim of prescriptive title and adverse possession will go together or not, does not arise for consideration. At any rate, going by the decision of the Supreme Court in Uttam Chand (supra), this Court has no hesitation to hold that both the pleas will not go together. 27. Coming to the case in hand, once this Court has already found that Ext.B1 can only be construed as one granting permissive occupation for a particular purpose and that the right granted to the defendant must be construed to be in furtherance to the intention of the parties under Ext.B1, it will be wholly impermissible for the court to hold that an absolute divesting of title taken place based on Ext.B1. Therefore, the claim under Ext.B1 can only be construed as permissive and if that be so, the plea of adverse possession must fail. 28. In view of the above discussions, the substantial questions of law are answered in favour of the appellant/plaintiff, and it is held that the occupation of the respondent/defendant over the plaint schedule property is purely permissive and that, in view of the fact that occupation is permissive, the plea of adverse possession is unsustainable. Resultantly, this appeal is allowed by reversing the judgments and decrees of the Additional District Court-III, Palakkad dated 23.2.2015 in AS No.139/2011 and of the Munsiff's Court, Alathur dated 24.2.2011 in OS No. OS No.27/2010. OS No. OS No.27/2010 on the files of the Munsiff's Court, Alathur shall stand decreed as prayed for. The respondent is directed to surrender vacant possession of the property within a period of one month from the date of the decree, failing which the appellant/plaintiff is entitled to execute the sale through the process of court. Costs made easy.