A fresh suit for recovery of possession based on title after a partition decree is barred by Section 47 CPC; delivery is part of execution; adverse possession cannot defeat a decree holder where co-ownership existed and no valid ouster is proven; limitation for execution starts from the decree date (Article 136) and Section 27 does not apply to execution.

Headnote:(A) Laws and sections cited - - "Section 47 CPC mandates that all questions arising between the parties to the suit in which the decree was passed or their representatives relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit." (Para 16) - "the period for executing Ext.A1 Final Decree is 12 years from 02.06.1977 in view of Article 136 of the Limitation Act." (Para 13) - "The 12 years limitation period for filing a suit for possession provided in Article 65 of the Limitation Act starts when the possession of the defendant becomes adverse to the plaintiff." (Para 22) - "Section 27 is applicable only to suits and not applicable to execution of decrees." (Para 23) - "Delivery is a process coming within the scope of execution." (Para 16) - "The three classic requirements of adverse possession are: nec vi (adequate in continuity), nec clam (adequate in publicity) and nec precario (adverse to a competitor). All these should coexist at the same time for claiming adverse possession." (Para 20) - "There could not be any adverse possession even if one of the co-owners is in exclusive possession, in the absence of any ouster clearly pleaded and established." (Para 24) - "The plaintiff did not take delivery of the plaint schedule property in execution of Ext.A1 Final Decree." (Para 13) - "This Second Appeal is allowed setting aside the judgment and decree of the First Appellate Court and dismissing the suit." (Para 27)

(B) Key legal principles and points discussed - - The bar to a separate suit for possession arising out of a partition decree: "Section 47 is of general application to the execution of the decrees... and a separate suit is not maintainable" in the context of delivery and possession arising from a partition decree. (Para 16, 15-16) - Delivery as part of execution: "Delivery is a part of execution of a final decree in a partition suit." (Para 16) - Adverse possession against a decree holder: the burden to prove hostile, open, continuous, exclusive possession with clear evidence; mere possession by co-owners without ouster does not constitute adverse possession. (Paras 20-25) - Limitation interplay in partition suits: a separate suit for possession based on title post-decree is governed by the same limitation framework and cannot override the decree by mere passage of time if not properly pleaded and proven. (Paras 21-26) - The court’s remedy on questions framed: substantial questions of law Nos. 1 and 2 answered against the party opposing the appeal, leading to dismissal of the suit. (Paras 7, 12-18, 26-27)

(C)

Facts of the case:
- "The suit was originally against defendants 1 & 2 for recovery of possession, for putting up the boundaries and injunction with respect to Plaint A schedule property which is ‘KLMNOPCDTSRQJ’ Plot allotted to him as per Ext.A1 Final Decree dated 02/06/1977 in O.S.No.1323/1968 of the same Court for partition." (Para 2) - Ext.A1 Final Decree dated 02.06.1977 partitioned 19 cents; specific plot allotted to plaintiff; other co-owners received other plots. (Para 2) - The plaintiff and the 11th defendant were assignees of co-owners; the suit sought recovery of possession and to demolish Plaintiff B schedule structures and fix boundaries. (Para 2-3) - The Trial Court held the suit barred by limitation and that there was adverse possession; the First Appellate Court decreed in plaintiff’s favor on the strength of title, holding inter alia that the suit is not barred by res-judicata and that the plaintiff had title on Ext.A1 Final Decree; defendants’ adverse possession claims were not established. (Paras 5-6, 9-11) - On formulation of substantial questions of law, the High Court ultimately held that: (i) a separate suit for recovery of possession is not maintainable under Section 47 CPC when based on a decree in partition, and (ii) title was not lost by adverse possession. (Paras 7, 12-25)

(D)

Findings of Court:
- Question of law No.1: Admittedly, the plaintiff did not take delivery of the plaint schedule property in execution of Ext.A1 Final Decree; delivery must be sought by execution, not by a separate suit; the period for executing Ext.A1 Final Decree is 12 years from 02.06.1977; thus the suit for possession is not maintainable. (Para 13, 16-17) - The Full Bench consideration and subsequent interpretation: even where a decree exists, a fresh suit for possession cannot prevail if it relates to execution under Section 47; delivery is part of execution and the suit is barred. (Para 15-16) - Question of law No.2: The possession by defendants post-decree cannot be treated as adverse possession against the plaintiff because co-ownership existed and there was no proven ouster; hostile animus and cogent evidence were not established; Section 27 is not applicable to execution, so the rights under the decree were not extinguished. (Paras 23-25) - The First Appellate Court’s conclusions on adverse possession were not sustained; the court held that the defendants did not perfect title by adverse possession. (Para 26) (E)

Issues: - (i) Whether a separate suit for recovery of possession is maintainable, at the instance of a person who did not take delivery of the property pursuant to a Final Decree passed in a partition suit? (Para 7) - (ii) Whether the First Appellate Court is justified in holding that the title of the plaintiff is not lost by adverse possession? (Para 7) (F)

Ratio Decidendi: - Section 47 CPC bars a separate suit for execution-related questions; delivery of property is a mode of enforcing a decree in partition; thus the suit for possession is not maintainable when delivery was not sought within the prescribed period. (Paras 16-17) - Adverse possession requires nec vi, nec clam, nec precario; co-ownership and lack of ouster negate a finding of adverse possession; mere long possession without hostile intent does not extinguish the plaintiff’s rights. (Paras 20-25) - Section 27 applies only to suits, not to execution; therefore, the determination of extinguishment rights in execution proceedings is not governed by Section 27 in this context. (Paras 23-25) (F)

Result: - "This Second Appeal is allowed setting aside the judgment and decree of the First Appellate Court and dismissing the suit." (Para 27)

JUDGMENT

1. The appellants are the defendants 1 & 2 in O.S.No.783/1993 of the Munsiff’s Court, Neyyattinkara. Defendants 1 and 2 are mother and son. The facts of the case relevant for this appeal are more or less admitted by the parties.

2. The suit was originally against defendants 1 & 2 for recovery of possession, for putting up the boundaries and injunction with respect to Plaint A schedule property which is ‘KLMNOPCDTSRQJ’ Plot allotted to him as per Ext.A1 Final Decree dated 02/06/1977 in O.S.No.1323/1968 of the same Court for partition. Originally the area was shown as 4.329 cents and later it was amended as 4.322 cents. The plaintiff was the 11^th defendant and the defendants 1 & 2 were the defendants 3 & 7 in O.S.No.1323/1968. The defendants 1 & 2 were allotted ‘RSTDEUVW’ as per Ext.A1 Final Decree. Except the plaintiff and the 11^th defendant (plaintiff herein), all the other parties in O.S.No.1323/1968 belonged to the Tharavadu of the Defendants 1 & 2 herein. The plaintiff and the 11^th defendant in O.S.No.1323/1968 were assignees of the co-owners of the Tharavadu. As per Ext.A1 Final Decree, the property therein having an extent of 14.298 cents identified by the Advocate Commissioner out of the Plaint Schedule property of 19 cents, was divided into four plots. All the parties, except the 11^th defendant (plaintiff herein) took delivery of the plots as per Ext.A1 Final Decree. The defendants 1 & 2 had filed another suit as O.S.No.710/1983 in the same Court and had obtained stay of execution of Ext.A1 Final Decree by the plaintiff herein for the period from 04/10/1983 to 21/01/1984 as revealed from Ext.B11 Interim Order and Ext.B12 judgment dismissing O.S.No.710/1983. Appeal as A.S.No.216/1988 filed by the defendants 1 & 2 herein was dismissed by Ext.A3 judgment. The plaintiff included Plaint B schedule property in the Plaint through amendment which is a construction in the Plaint A schedule property. The defendants 3 to 10 were impleaded subsequently as they are the adjacent property owners who are necessary for the fixation of boundaries. The suit as amended was for recovery of possession of the trespassed portion of the Plaint A schedule property from the defendants after demolishing Plaint B schedule structures, for perpetual injunction against trespass into the Plaint A schedule property and against construction of new boundary therein, for allowing the plaintiff to put up the northern and southern boundaries of the plaint schedule property.

3. The defendants 1 & 2 filed Written Statement and Addl. Written Statement contending, inter alia, that Ext.A1 Final decree is not executable as it is hopelessly barred by limitation; that the present suit is barred by limitation as the same was not filed within 12 years from the date of Ext.A1 Decree and that they have perfected their title by adverse possession and limitation.

4. The defendants 9 & 10 who are the legal heirs of the 10^th defendant in O.S.No.1323/1968 filed Written Statement raising contentions similar to those of the defendants 1 & 2.

5. The Trial Court dismissed the suit, holding that the suit is barred by limitation and that defendants 1 & 2 could establish adverse possession over the plaint A schedule property.

6. On appeal filed by the plaintiff, the First Appellate Court set aside the judgment and decree of the Trial Court and decreed the suit allowing recovery of possession of Plot ‘JLMNUVOPCDGRWSTRI’ having an extent of 4.260 cents marked in Ext.C1(a) Plan on the strength of title, removing plaint B schedule construction, with fixation of boundaries and consequential injunction. The First Appellate Court found that the suit is not barred by res-judicata and Section 47 CPC; that the plaintiff has got title over the Paint A schedule property on the strength of Ext.A1 Final decree; the present suit is perfectly maintainable; that rights claimed by the defendants 1 & 2 by adverse possession and as per Section 44 of the Transfer of Property Act are not establishe

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Cases Referred (12)