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Krishnan Ezhuthassan Vs. Nanikutty Amma - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 335 of 1955
Judge
Reported inAIR1959Ker368
ActsLimitation Act, 1908 - Schedule - Articles 142 and 144
AppellantKrishnan Ezhuthassan
RespondentNanikutty Amma
Appellant Advocate K. Rama Iyer, Adv.
Respondent Advocate T. Chandrasekhara Menon, Adv.
Cases ReferredSee Srisch Chandra Nandy v. Baijnath
Excerpt:
- - the right under this decree as well as all their rights in the plaint a schedule property were got assignment of by the 1st defendant under ext. the 3rd and 4th defendants were clearly in favour of the 1st defendant and repudiated their lease to the plaintiff as having been executed under misapprehension. this clearly means that the plaintiff has lost his title by adverse possession of the 1st defendant and his predecessors. baijnath, air 1935 pc 36. in this case the plaintiff has not even clearly proved and the burden is on him, that the persons in possession at date of suit are successors in interest of the persons who were originally inducted into possession as tenants by the plaintiffs own predecessors......as regards the b schedule. i therefore modify the decrees of the court below so as to leave intact the decree of the trial court as regards the c, d and e schedule, properties alone and dismiss the suit as regards the b schedule. in the circumstances of the case the parties will suffer their costs throughout.
Judgment:

Varadaraja Iyengar, J.

1. This second appeal is by the 1st defendant in a suit for declaration which has been decreed against him concurrently by the Courts below.

2. The disputed property is S. No. 192 in Thengallur Village in Talappilli Taluk. It is 4 acres 98 cents in extent and schedule as A to the plaint. Schedules B, C. D, and E are various portions of the A schedule and entered for purpose of denoting the possession of different persons. Thus defendants 2, 3, and 4 were in separate possession at date of suit of the B, C, and D schedules and defendants 5 to 10 were in possession of the E schedule. These persons were claimed by the plaintiff to be tenants under him, defendants 2, 3, ana 4 having each taken Exts. D, E, and F leases all in 1121 from the plaintiff for the respective properties in their possession.

The plaintiff's complaint was that his tenants above said had, in the persuasion of the 1st defendant rival title holder, acknowledged the latter recently as their landlord and it has been rendered necessary in consequence to assert his title and get it declared through Court. Subsequent to the institution of the suit the plaintiff has amended the suit to one in ejectment but leaving the option to the tenants to continue in possession under the plaintiff.

3. According to the plaintiff, the land belonged in jenmom to the Manakkulom Swaroopan represented by the defendants 15, 16 and 18, and was outstanding on kanom from the Swaroopan from 1049 in favour of stranger tarwad. The plaintiff's family obtained assignment of the kanom in 1055 under Ext. Q and later on got renewal in their own name under Ext, A or P on 23-5-1091. In the partition in plaintiff's family under decree of Court in O. S. 98 of 1105 the property fell to the plaintiff's share and he obtained symbolical possession under Ext. C on 16-8-1121. He has filed this suit on 3-12-1121.

4. The 1st defendant was the chief contesting defendant. According to him the property except to the extent of the E schedule appertained to Punnath Swaroopam (d. 14) who had granted verumpattom in favour of Panakuttu Govindan Nair while the Paripunnathu tarwad represented ny the defendants 11 to 13 got assignment of, in 1082. The Paripunnathu tarwad had leased out the B, C, Schedule properties covered by the Verumppatton under Ext. 33 as regards B schedule and Ext, 14 as regards C and D schedule on the same day 31-12-1090 in favour of the predecessor-in-intercst of the defendant 2 and defendants 3 and 4. Ext. 14 was later split up into Exts. 12 and 32 on 13-8-1105 for the C and D schedule separately.

As regards E schedule properties it belonged in jenmom to the Paripunnathu tarwad itself and was outstanding under separate lease Ext. 13 dated 9-10-1091 in favour of the predecessor-in-interest of the defendants 5 to 10. While so the Paripunnathu people filed suit O. S. 364 of 112, as regards B schedule for recovery with arrears of rent and obtained decree. The right under this decree as well as all their rights in the plaint A schedule property Were got assignment of by the 1st defendant under Ext. 36 dated 19-10-119 and Ext. 43 dated 4-12-1121.

It was when this decree O. S. 364 of 112 had developed into a sale sannad right and was put in execution for purpose of delivery in favour of the 1st defendant that the plaintiff instituted this suit.

It may be added that the 1st defendant obtained delivery of the B Block under decree of Court in O.S. 25 of 1120 against the 2nd defendant and later leased it to the 5th defendant under Ext. 45 and filed suits regarding C and D blocks in 11.22. The 1st defendant also executed Ext. 44 pattern chit to the Punnathu Swaroopam, He therefore pleaded that the plaintiff had no title to maintain the suit. Even otherwise according to him the suit was barred by limitation and adverse possession.

5. The 2nd defendant supported the plaintiff's claim but the 5th defendant who had come into the B schedule property subsequent to him derived possession certainly through the 1st defendant and asserted accordingly. The 3rd and 4th defendants were clearly in favour of the 1st defendant and repudiated their lease to the plaintiff as having been executed under misapprehension. Towards the end, the tenants in possession declared themselves willing to hold under such person as the Court found to be the real title holder.

6. After a rather very elaborate trial the trial Court found jenmom title in the Manakkulom Swaroopam and a kanom holding from them in favour of the plaintiff. As regards the tenancies claimed to have been granted by either side in respect of the B to E schedule properties, the Court below found that none of the lease deeds Ext. 33, 14 or 13 covered those schedules. The Court did not find specifically but it must have been its view that the predecessors-in-jnterest of the tenants in possession at date of suit must have been let in by the plaintiffs tarwad. And as the parties in possession do not claim any adverse possession the question of adverse possession or limitation did not in the opinion of the Court arise for considerations The fact that some time past the tenants did not pay pattom to the plaintiff's tarwad did not affect the matter. And in conformity with the plaintiffs offer the Court below directed the tenants to execute pattom chits to the plaintiff and so granted decree in his favour.

7. The District Court has confirmed the decree practically on the same grounds, as found favour with the Munsiff. The only point on which that Court differed from the Munsiff was when it found that Ext. 33 dated 31-12-1090 regarding the B schedule by the Paripunnathu tarwad did cover the B schedule properties. But the force of the findings was offset by trie further finding that the lessee had been let into possession even previously under a lease from Manakkulom tarwad. Hence this appeal by the 1st defendant as I commenced by saying.

8. Having heard learned counsel on both sides and perused the records I have come to the conclusion that the plaintiff has established title as the Courts below have found but lost the same as regards B schedule property on account of adverse possession and limitation and is therefore entitled to win only as regards C, D and E schedule properties.

9. Taking up first the question of title there is the Outstanding fact that the pattam for the property stands in favour of the Manakkulom Swaroopam, vide Ext. G and they alone seem to have dealt with the property, vide Ext. Q & P. The Punnathoor Swaroopam set up by the 1st defendant as jenmies have not produced their Land Register even. Indeed the matter was not seriously pressed by learned counsel Mr. Rama Iyer appearing for appellant. I hold therefore that the title rested with the plaintiff.

10. Regarding possession of the property wo have seriously to consider only B schedule property which is identified by the Court below in contrasts to the trial Court to be comprised in Ext. 83. Thatas to say the C, D. E, schedule properties, to the extent, they are found not to be covered by the leases set up by the 1st defendant and that concurrently by both Courts may be left out of consideration so far as the 1st defendant is concerned. Nothing has been urged by Mr. Rama Iyer to show that the concurrent finding as above regarding those C. D and E schedule properties is any way wrong. J therefore find, in agreement with the Courts below that the plaintiff's tenancy right regarding those schedules is established.

11. Coming to the B schedule property it has been contended before me by learned counsel for the plaintiff-respondent that the finding of the lower Court that it is covered by Ext. 33 is not quite correct. But the S. No. 192 is specifically mentioned in Ext. 33 and there is no reason why that should happen unless it was actually dealt with thereunder. In fact the rivalry between the two Swaroopams and their derivative holders had come to the fore even an 1101 in suit filed by the Paripunnatthu tarwad against the legal representative of Ayyappon their lessee under Ext. 33. The trial Court judgment is not filed but the appellate judgment dated 22-4-1103 is filed as Ext. 38. It is seen from this judgment that Aiyappan's legal representative filed lease deed dated 29-3-1090 in favour of Aiyappan from the Manakulom Swaroopam vide Ext. III in that case and claimed to be in possession not under Ext. 33 but under the other lease. The trial Court would appear to have accepted this contention but the appellate Court threw it out. Indeed it was on the strength of the Munsiff's finding then that the lower Court found that the inclusion of the B schedule in Ext. 33 did not much matter.

12. In the judgment the conflict between the Manakulom Swaroopam and their Kanomdars, the plaintiff's family on the one side and the Paripunnathu tarwad and their lessees on the other side must have come to a head in or about 1090-1091. For while the Manakulom Swaroopam having obtained patta in 1080 renewed their kanom under Ext. P on 23-5-1091, the Paripunnathu tarwad gave this lease Ext. 33 on 31-12-1090. The latter would also seem to have succeeded in keeping out the former from the rents of the property. The proceedings in Ext. 38 suit between 1101 to 1102 and next O. S. 364 of 112 which finally introduced the 1st defendant evince the actual dealings with the property by Puripumathu tarwad.

But the plaintiff has nothing to show actual touch with the property and has to confess that he does not know how far even the rents were collected and which are the arrears. We have therefore to deal with the property on the footing that the plaintiffs predecessors, title holders as they were, have been kept out of the rents by the 1st defendant's predecessors-in-interest for more than 12 years before the date of suit. This clearly means that the plaintiff has lost his title by adverse possession of the 1st defendant and his predecessors.

13. Learned counsel for plaintiff urged that mere payments of rent by his tenant to the Paripunnathu tarwad did not amount to a determination of the tenancy, because there is no proof that the plaintiff or his predecessor had any notice of it and be relied upon Radha Govinda v. Nilkantha Narayan, AIR 1951 Pat 556. That case no doubt decided that the landlord's dispossession can only occur by a stranger who claims adverse to him, intercepting his receipt of rent from the lessee. That is to say it is not mere receipt but the adverse receipt. But to constitute the adverseness it is not necessary that it should be shown to have been brought to the knowledge of the true owner.

It is sufficient that the receipt of the other side is overt and without any attempt at concealment so that the person against whom time is running ought, if he exercises clue diligence, be aware of what is happening. See Srisch Chandra Nandy v. Baijnath, AIR 1935 PC 36. In this case the plaintiff has not even clearly proved and the burden is on him, that the persons in possession at date of suit are successors in interest of the persons who were originally inducted into possession as tenants by the plaintiffs own predecessors. And even assuming that point in plaintiff's favour, there is the outstanding fact that the tenants so inducted had attorned to third party in the possession of the Paripunnathu tarwad for more than the statutory period.

14. The result is that the plaintiff has lost his title to the B schedule plot. The suit can therefore be allowed only to the extent of the C, D and K schedule properties and has to be dismissed as regards the B schedule. I therefore modify the decrees of the Court below so as to leave intact the decree of the trial Court as regards the C, D and E schedule, properties alone and dismiss the suit as regards the B schedule. In the circumstances of the case the parties will suffer their costs throughout.


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