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KERALA HIGH COURT
K. Abraham Mathew, J.
Kerala State & Ors. —Petitioners
versus
A.S. Thilakan & Ors. —Respondents
R.F.A. No.629 of 2013
Decided on 19.12.2014
Facts of the case-
Where predecessors of the plaintiff in the year 1900 had handed over the suit property for the fishermen of the locality to be used as a yard for drawing fish and nets and this transaction was subject to the condition that the user of the property will not be changed. The plaintiff filed suit for declaration and recovery of possession in 1992. The opposite party took various grounds and alleged that they acquired title by adverse possession.
Findings of the Court
In the instant case as the title of the plaintiff as owner was not in dispute, Section 34 of 1963 Act will not apply and prayer for declaration made by the plaintiff was only a mistake. Articles 64 to 67 of Limitation Act provide for limitation for suit for recovery of possession. The difference between Articles 65 and 66 can be easily noticed. Apart from the basis on which the relief is claimed and the time from which the period of limitation is to be reckoned, the main distinction between the cases to which the above two Articles apply relates to burden of proof. In the cases in which Article 65 applies the burden is shifted to the defendant as a result of his plea of adverse possession, while in the cases in which Article 66 applies the burden continues to be on the plaintiff till the end of the trial. Mere continuation of unauthorized possession even for a period of more than 12 years is not enough to refuse recovery of possession by title holder. The plaintiff has not lost his right to recover the property as the defendants have not acquired title by way of adverse possession. The decree passed by the trial Court upheld.
Result: Appeal dismissed.
K. Abraham Mathew, J.—The verdict in this appeal depends upon the Article in the Limitation Act that is applicable to the facts of the case.
The plaint schedule property having an extent of 2 acres 1 cent was in the ownership and possession of the predecessors of the plaintiff. In 1900 Chathunni, predecessor of the plaintiff handed over its possession to the government, which wanted it for the fishermen of the locality to be used as a yard for drying fish and nets. The transaction was subject to the conditions that so long as the property was used by the fisherman for the purpose for which it was given, the owner would not demand any consideration and that if the property was not used for the said purpose or the property ceased to be used for the said purpose, the owner would be entitled to resume possession. The transaction was reduced into writing, which was registered. On 23.4.1910 Sankaran, brother of Chathunni, executed an identical document which also was registered. At the partition that took place in the ‘tarwad’ of the plaintiff in 1970, the property was allotted to his share. In 1970 the property ceased to be used for the above purpose. The request to the government to give back possession was not complied with. The plaintiff filed O.P.No.14908 of 1992 for appropriate reliefs, which was disposed of by this court with the observation that civil suit was the proper remedy. The plaintiff instituted O.S.No.310 of 1993 for a declaration that the two registered documents mentioned above have ceased to be in force and that he has title to the plaint schedule property. He also prayed for recovery of possession of the property and for a mandatory injunction directing the defendant State to demolish and remove the structures, if any, put up by it. The State raised various contentions in its written statement: The government, and not the plaintiff, is the owner of the property; it has made permanent constructions in the property; the license is irrevocable and it has acquired title by adverse possession; even if the property is not used for the purpose for which it was given to the government, the plaintiff has no right to recover its possession.
2. On the death of the original plaintiff his legal representatives were impleaded as additional plaintiffs. After the trial the suit was dismissed. In A.S.No.452 of 1999 this court set aside the judgment and the decree and remanded the suit. Thereafter, the impugned decree was passed granting the reliefs prayed for in the plaint. The defendant State has come up in appeal.
3. Though several contentions were raised in the trial court and several grounds have been raised in the appeal memorandum, the only argument advanced at the hearing is that the suit is barred by the Law of Limitation. The learned senior government pleader Sri.C.R.Shyamkumar fairly admitted that the pleas of the State regarding irrevocability of the license and acquisition of title by adverse possession do not arise for consideration for want of pleadings and total lack of evidence.
4. Ext A2 is a certified copy of the partition deed by which the plaint schedule property was allotted to the plaintiff.
5. The genuineness of Exts A3 and A4 documents of 1900 and 1910 relied on by the plaintiff and the nature of the transaction and the cessation in 1970 of the use of the property for the purpose for which it was given to the government are not disputed. The transaction is a licence. The agreement provided that if the property ceased to be used as fish curing yard by fishermen the licensor would be entitled to get back its possession. This right of the plaintiff also is not disputed.
6. The three main reliefs claimed in the suit are:
1) declaration that the registered documents (Exts A3 and A4) of 1900 and 1910 have ceased to be in force,
2) declaration that the plaintiff is the owner of the property, and
3) recovery of possession of the plaint schedule property.
7. The learned Senior Government Pleader Sri.C.R
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