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IN THE HIGH COURT OF KERALA AT ERNAKULAM
N. Anil Kumar, J.
Ramachandran and Ors. – Appellants
Versus
Omanakuttan and Ors. – Respondents
R.S.A.No.22 OF 2016
Decided On : 26-08-2021
Land Conservancy Act, 1957 - Limitation Act - Ancestral Proprietary - Title - Agricultural lands - Whether in light of the finding regarding joint possession, plaintiffs could seek partition over plaint schedule item No.1 without the junction of the Government in party array - Did court below go wrong in not finding that possession over immovable property by itself is a substantive right recognised by law and that said interest is heritable, divisible and transferable - Did the lower appellate court commit a serious error in law by holding that no suit for partition is maintainable based on joint possessory right of parties without making the owner of property in party array - Did lower appellate court go wrong in Is it perverse in law to hold that no suit for partition is maintainable without seeking a declaration of title over property sought to be partitioned - 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 same in facts and circumstances of this case - Did lower appellate court go wrong in setting aside judgment and decree of trial court.
Finding of the court : It is true that plaint schedule item No.1 is a Government land and the State was not arrayed as one of the defendants in suit - It is settled principle of law that an unauthorised occupant of a Government land who acquired possessory title has a valid title against all 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 - It is settled law that even before acquisition of statutory title by adverse possession for requisite period under Limitation Act, - Possessory owner has well defined rights in property possessory right is heritable, divisible and transferable as distinct from proprietary title - Land Conservancy Act, 1957 prohibits only regarding matters for in Act and Rules - On a conjoint reading of pleadings and deposition of PW1 and DW2 would show that plaint schedule item No.1 property has been in joint possession of plaintiffs and 1st defendant - Court is of view trial court had examined matter in correct perspective and had rightly come to conclusion that plaint schedule item No.1 is partible.
Result : Appeal is allowed.
Key Points: - (!) The plaint schedule item No.1 property is Government land; possessory title holders have rights against all world except the Government (appeal judgment discusses possessory title against all but Government). - (!) Possessory title is heritable, divisible and transferable; it is distinct from proprietary title (appeal judgment quotes and relies on this principle). - (!) The lower appellate court erred in holding that no suit for partition is maintainable based on joint possessory right without making the owner Government a party; Government not arrayed affected maintainability of partition for item No.1. - (!) The trial court correctly held item No.1 is partible; first appellate court reversed without proper basis. - (!) Government may restore land in accordance with law; possessory right over Government land can be treated as a family asset available for partition among possessors. - (!) The appeal succeeded; judgment and decree of trial court restored; no costs. (!)
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. 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 Gopalakri
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