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Kavunnv Chakkiar Vs. Govinda Gurukkal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 988 of 1971
Judge
Reported inAIR1975Ker182
ActsLimitation Act, 1963 - Sections 14 - Schedule - Articles 64 and 65
AppellantKavunnv Chakkiar
RespondentGovinda Gurukkal and anr.
Appellant Advocate C.S. Ananthakrishna Iyer,; P.S. Krishna Iyer and; M. Bal
Respondent Advocate T.M. Mahalinga Iyer and; M.K. Narayana Menon, Advs.
Cases ReferredIndia Electric Works Ltd. v. James Mantosh.
Excerpt:
.....14 and articles 64 and 65 of schedule to limitation act, 1963 - claim of title over property by lessee - lessee holding limited right over property cannot claim title by prescription - title of landlord not affected by limited adverse possession by lessee. - - the result is the defendant's claim to prescriptive lease must fail, as the lease and its terms have been found against. (1970) 2 scwr 743 =(air 1971 sc 2313), the words 'or other cause of a like nature' in the section must be construed liberally, there is no warrant to extend the section to one plaintiff who seeks to harness the benefit of a suit by another plaintiff. nor does the failure of the earlier suit attract explanation iii which merely equates misjoinder of parties and of causes of action with defect of..........he had not committed any trespass and that he had not taken the building on rent in 1118. kunjunni chakkiar leased the building and land to him on 11-12-1112 for an annual rent of rs. 36/-, which was to be adjusted against the interest on the premium amount of rs. 300 which he had received. kunjunni chakkiar had also given him the document ext. d-l evidencing the terms of the lease. since then he was in undisputed possession of the property as lessee and owing to his long adverse possession, the title of the plaintiff's tarwad was destroyed.4. the trial court decreed the suit in favour of the plaintiff, awarding him mesne profits for 3 years at the rate of rs. 250/- a year and damages amounting to rs. 50/-. on appeal by the defendant, the learned additional district judge, trichur, set.....
Judgment:

G. Balagangadharan Nair, J.

1. The appeal by the additional plaintiff, now represented by his legal representatives, arises out of a suit for recovery of 63 cents of land with a building thereon, on the strength of title. The suit was allowed by the trial Court but was dismissed on the appeal taken by the first respondent-first defendant.

2. The property in dispute admittedly belongs to the plaintiffs' tarwad. In 1113, there was a Karar (Ext. P-1) in the tarwad under which the then Karnavan Kunjunni Chakkiar, relinquished his management in favour of Parameswara Chakkiar. the original plaintiff (hereinafter called merely as the plaintiff). There were some disputes and litigations in the tarwad and these were referred to arbitration, which led to an award Ext. P-4, providing for a maintenance arrangement. The plaintiff's case in brief is as follows: In 1113 he leased the building to one Marath Achutha Menon. The first defendant (called for brief the defendant) began residing in the building under Achutha Menon and ran a 'Kalari'. Some time later he vacated the building but in 1118 again took it on a monthly rent of Rs. 3/-. While thus in occupation he attempted to trespass on the property and in order to cover the trespass created a letter in collusion with Kunjunni Chakkiar. The plaintiff thereupon sent him a lawyer's notice (of which Ext. P-5 is a copy) on 19-2-1125 demanding surrender of the building with arrears of rent. On 20-2-1125 the defendant trespassed on the compound in which the building stands on the strength of the collusive letter (of which Ext. D-1 is a copy) and on 24-2-1125 he sent a reply (Ext. P-6) through his lawyer claiming that he was a lessee of the land and building under Kunjunni Chakkiar. The plaintiff and one Madhava Chakkiar, the seniormost member of another branch filed O. S. 278 of 1954 for recovery of the land and building. The defendant contested the suit, setting up the alleged lease from Kunjunni Chakkiar. The suit was decreed by the trial Court by the judgment Ext. P-7 dated 24-11-1956. This judgment was however reversed by the appellate Court which dismissed the suit (Ext. P-11 dated 15-2-1958 is the judgment). The two plaintiffs thereupon preferred S. A. 487 of 1958 in the High Court, which dismissed the appeal by the judgment Ext. P-12 dated 21-6-1962. The High Court held that a suit would lie only on behalf of the tarwad and not on behalf of any tavazhi and as there was no suit on behalf of the tarwad it had to be dismissed. Kunjunni Chakkiar died on 15-9-1957 and the plaintiff thereupon became the karnavan competent to represent the tarwad. He accordingly claimed recovery of the land and building with mesne profits from 20-2-1125, and some amounts by way of damages.

3. So far as relevant, the contentions of the defendant were that he had not committed any trespass and that he had not taken the building on rent in 1118. Kunjunni Chakkiar leased the building and land to him on 11-12-1112 for an annual rent of Rs. 36/-, Which was to be adjusted against the interest on the premium amount of Rs. 300 which he had received. Kunjunni Chakkiar had also given him the document Ext. D-l evidencing the terms of the lease. Since then he was in undisputed possession of the property as lessee and owing to his long adverse possession, the title of the plaintiff's tarwad was destroyed.

4. The trial Court decreed the suit in favour of the plaintiff, awarding him mesne profits for 3 years at the rate of Rs. 250/- a year and damages amounting to Rs. 50/-. On appeal by the defendant, the learned Additional District Judge, Trichur, set aside the decree for recovery of property and mesne profits, allowing the appeal to that extent.

5. Counsel for the appellant contended in the first place that as the plaintiff's title is admitted and found, the defendant can successfully resist the prayer for ejectment only by establishing the lease set up by him and as the lease has been concurrently found against, a decree for eviction must follow. In order to deal with this contention, it is necessary to recall briefly the rival contentions of the parties and the findings of the Courts below. While the plaintiff alleges that the defendant came to occupy the building under a lease of 1118 and that later in Kanni 1125 he trespassed on the land the defendant contends that he is holding both the building and land under a lease dated 11-12-1112 granted by Kunjunni Chakkiar for an annual rent of Rs. 36/-which was to be adjusted against the interest on Rs. 300/- being the premium. In proof of this alleged lease the defendant has produced Ext. D-1, copy of a letter given by Kunjunni Chakkiar, embodying the terms of the lease. The trial Court has (held that Ext. D-1 was collusively created by Kunjunni Chakkiar and the defendant, that the defendant did not get possession in 1112 as claimed by him and that the evidence and circumstances disprove his case that he is a lessee of the land and building. It further held that Marath Achutha Menon was the tenant of the building under Ext. P-14 dated, 1-3-1113 and that the defendant came in as lessee of the building in 1118 and obtained possession of the land in Kanni 1125. The lower appellate Court has confirmed these findings except that it observes that there was no evidence of any fresh lease of the building to the defendant fin 1118) and so he must have continued in occupation under the original lease granted to Marath Achutha Menon. The result of the concurrent findings is that the lease set UP BY the defendant is without basis and that Exhibit D-l is a collusive document created by him and Kunjunni Chakkiar. In the face of these findings the appellant's contention, that whatever other defences the defendant might have, he cannot resist the suit on the unproved lease has to be accepted, as the plaintiff's title is clear.

6. In the trial Court the defendant had raised a plea Chat he has perfected absolute title by his adverse possession from 1112. Now the plaintiff admits that the defendant came upon the land in 1125. The Courts below while rejecting the defendant's plea have accepted the plaintiff's case on this point. The trial Court rejected the Plea of adverse possession, holding that in view of his definite case that he was in possession as a lessee the defendant did not have the necessary animus to hold the property as his own or in his own right against the plaintiff's tarwad. The lower appellate Court did not expressly reject this contention, but did so in effect when it held that by asserting to be a lessee for over 12 years the defendant has merely prescribed for a lessee's right. No attempt was made before me to maintain that the defendant has acquired absolute title by prescription, obviously for the reason that despite a passing claim to that effect, the burden of the defendant's written statement is that he is holding as a lessee. Adverse possession postulates a hostile possession which carries a notorious disavowal of the true owner's title and constitutes an invasion of that title. The defendant's plea of tenancy both in the written statement in this case and the written statement (Ext. P-8) in O.S. 278 of 1954 carries no denial or invasion of the title of the plaintiff's tarwad to the suit property: on the other hand they imply an admission of that title. That a party who admits that he holds only a limited interest cannot plead; prescriptive title to general ownership is axiomatic The plea of acquisition of absolute title was thus correctly rejected by the trial Court and it was not rightly sought to be revived in the lower Court or this Court.

7. Passing to the acquisition of lessee's right by prescription, there cannot be any doubt that such a right can be so acquired. As observed in the Law of Adverse Possession by Krishnaswamy (7th Edition), page 165, 'The extent of the adverseness of the possession depends on the extent of the claim of right under which possession is obtained and kept' and 'Where the claim of adverse possession is restricted to a limited interest in the property, the possession is adverse to that extent only.' (page 166) And further.

'If the party in actual possession of the property admits that he holds a limited interest in it, as for example that he holds as a mortgagee, he cannot plead prescriptive title in regard to general ownership, but he may in a suit for ejectment, successfully plead his adverse possession to the extent of the interest claimed by him.' (page 166).

8. That being the position in law, the only question on this aspect is whether the defendant has prescribed for a lessee's interest as held by the appellate Court. He has been in possession from 1125 (1950) and the suit was instituted on 21-6-1963: so that there was adequate continuity. But in view of the concurrent findings -- with which I agree -- that the lease set up by the defendant has not been proved, this continuous possession is incapable of founding a prescriptive tenancy right, for it is not enough if the person in possession claims a tenancy; there must be evidence to show the essential terms of the lease under which he purports to claim. To uphold a prescriptive lease, in the absence of such evidence, will be to uphold a relationship that would be incapable of enforcement. This is of significance in the case of derivative or limited prescriptive rights, as the right of the owner is not completely extinguished as with acquisition of absolute prescriptive rights. The former case postulates a dichotomy of interests with, a legal nexus--whether it is a mortgage or lease --with definite incidents regulating the relationship and law will have to enforce them, if and when required. If the terms of that nexus are unproved, law will have to operate in a vacuum which is an impossible phenomenon. The result is the defendant's claim to prescriptive lease must fail, as the lease and its terms have been found against. It is meaningless to say that one is a lessee, without proof of that lease and its terms. What therefore survives in this case -- positively -- is only the defendant's plea that he is in permissive possession and -- negatively -- the absence of any hostile and adverse claim to the full ownership. This means that. notwithstanding the expiry of 12 years, the right of the plaintiff's tarwad is alive and the plaintiff is entitled to recover the property on the strength of title.

9. Counsel for the appellant raised an alternative contention that in any case the suit is within time 39 the plaintiff is entitled to exclude the period during which O. S. 278 of 1954 was pending, under Section 14 of 'the Limitation Act or on the principles underlying that Section, particularly Explanation III. Now O. S. 278 of 1954 was dismissed by the High Court (Ex. P-12 judgment) on the ground that it was brought by a tavazhi and not by the plaintiff's tarwad, which alone was competent to sue. In other words, the High Court held that the suit was by an incompetent plaintiff who had no cause of action. Section 14 has no application to such a situation and if counsel's contention is accepted an incompetent plaintiff's suit can be invoked by another plaintiff to claim exclusion of time under Section 14. Although as held by the Supreme Court in India Electric Works Ltd. v. James Mantosh. (1970) 2 SCWR 743 = (AIR 1971 SC 2313), the words 'or other cause of a like nature' in the Section must be construed liberally, there is no warrant to extend the Section to one plaintiff who seeks to harness the benefit of a suit by another plaintiff. Nor does the failure of the earlier suit attract Explanation III which merely equates misjoinder of Parties and of causes of action with defect of jurisdiction for O. S. 278 of 1954 did not fail for either of these grounds. I reject the appellant's contention. But for reasons already noticed, the title of the plaintiff's tarwad has not been extinguished and the suit has to be allowed.

10. I set aside the judgment and decree of the lower appellate Court and restore the judgment and decree of the trial Court, The appellants will get their costs in this Court and the lower appellate Court from the first respondent.


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