In Paramu v. Balan (2001 (3) KLT 803) a learned
Judge of this Court examined the question as regards the power
of the appellate court to give direction with respect to the
payment of proper court-fees. After referring to sub-section (4)Judge of this Court examined the question as regards the power
of the appellate court to give direction with respect to the
of Section 12 of the Kerala Court Fees and Suit Valuation Act it
was held that, the appellate court has ample power to direct
payment of deficit court-fees as is done by the lower appellate
court.
65. In P.P.S. Pillai v. Catholic Syrian Bank (2000 (3)
KLT 629) a Division Bench of this Court held that, sub-section
(4) of Section 12 of the Kerala Court Fees and Suit Valuation Act
confers jurisdiction on the appellate court to consider either of its
own motion or on the application of any of the parties the
correctness of the order passed by the trial court affecting the fee
payable on the plaint. If the court of appeal decides that the fee
paid in the lower court was not sufficient, the appellate court
shall require the parties liable to pay the deficit court-fees, within
a time as may be fixed by it. The further provision is that, if the
deficit fee is not paid within the time fixed and the default is in
respect of a relief which has been dismissed by the lower court,
the appeal shall be dismissed. The principle laid down in P.P.S.
Pillai's case (supra) has been reiterated by another Division
Bench of this Court in Peter Cherian v. Abraham (2007 (4)
SCC 680).
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
MR.JUSTICE P.R.RAMACHANDRA MENON
&
MR. JUSTICE ANIL K.NARENDRAN
4TH DAYOF NOVEMBER 2016
RFA.No. 140 of 2010
K.K.GOVINDAN
Vs
K.G.PREMSANKAR, I
This appeal and cross-objection arise out of the judgment and
decree of the Subordinate Judge's Court, Thrissur dated 23.12.2009
in O.S.No.23/1992. It was a suit for declaration and perpetual
injunction filed by the plaintiff (the respondent in this appeal) in
respect of the plaint schedule property having an extent of 3.93
acres, comprised in Sy.No.4/1 of Madakkathara Village, covered by
Ext.A1 settlement deed No.2491/74 of SRO Ollukkara dated
13.5.1974.
2. Pending suit, the 2nd defendant (mother of the plaintiff)
died on 24.1.1993. Since the 2nd defendant had executed a will
bequeathing the plaint schedule property to the 1st defendant, the
trial court found that the suit does not abate even if her second son
(the additional 2nd appellant herein) is not brought on record.
3. The original appellant/1st defendant (father of the
plaintiff) died during the pendency of this appeal and his second son
was impleaded as the additional 2nd appellant, as per the order
dated 1.1.2013 in I.A.No.2489/2012.
4. Going by the plaint averments, the plaint schedule
property belongs to the plaintiff, which he obtained as per Ext.A1
settlement deed No.2491/74 of SRO Ollukkara dated 13.5.1974.
The 1st defendant is the father and the 2nd defendant is the
mother of the plaintiff. Since the plaintiff had to go abroad for
advance training and higher studies, he executed Ext.A2 power of
attorney No.277/83 of SRO Ollukkara dated 18.6.1983 in favour
of the 1st defendant, authorising him to sell the plaint schedule
property for sufficient consideration. By the end of 1984, the
plaintiff returned to India and thereupon, he cancelled Ext.A2
power of attorney, by executing Ext.A3 cancellation deed bearing
No.433/85 of SRO Ollukkara dated 28.9.1985. The defendants
came to know about the cancellation of Ext.A2 power of attorney
immediately after execution of Ext.A3 deed. While the plaintiff
was abroad, the 1st defendant was managing the plaint schedule
property by virtue of Ext.A2 power of attorney and he does not
have any independent right over the said property. On
25.8.1991, the plaintiff came to know that the 1st defendant
fraudulently and in violation of the trust reposed on him by the
plaintiff, executed Ext.A4 document No.2697/85 of SRO
Ollukkara dated 14.6.1985 on the strength of Ext.A2 power of
attorney. As per the recitals in Ext.A4 document, the 1st
defendant gifted the plaint schedule property to the 2nd
defendant. The plaintiff contended that, the 1st defendant has no
power to execute a document like Ext.A4 and that, the 2nd
defendant did not obtain any right over the said property on the
strength of Ext.A4. Therefore, in the plaint, the plaintiff sought
for a declaration that, Ext.A4 document No.2697/1985 dated
14.6.1985 of SRO Ollukkara is void ab initio, not binding upon
the plaint schedule property or his right, title and interest over
the said property and that, he is having absolute right, title and
possession over that property. The plaintiff has also sought for a
permanent prohibitory injunction restraining the defendants and
their men from taking usufructs from the plaint schedule property
or interfering with his peaceful possession and enjoyment of the
said property or executing any documents concerning the same
in the name of any person other than the plaintiff or inducting
strangers into the said property or committing any waste therein.
5. The defendants filed a joint written statement,
contending that, the plaintiff has not obtained any right over the
plaint schedule property as per Ext.A1 document dated
13.5.1974. The said document was never acted upon and was not
intended to be acted upon. Ext.A1 document was executed only
with a view to escape from the land reforms legislation, by
limiting the extent of the holdings. The plaintiff has no right or
possession over the plaint schedule property, which continued to
be in the possession of the 1st defendant till 14.6.1985, the date
on which he delivered the said property to the 2nd defendant on
the strength of Ext.A4 deed. Regarding execution of Ext.A2 power
of attorney dated 18.6.1983, the defendants contended that the
said document was not executed for selling the plaint schedule
property. In fact, the 1st defendant was asking the plaintiff to
execute a gift deed in respect of the plaint schedule property in
favour of the 2nd defendant before he was planning to go abroad.
The plaintiff had agreed to do so and he had taken Ext.A1
document with a promise to execute a gift deed in favour of the
2nd defendant. Since the plaintiff was in a hurry to go abroad, he
had executed Ext.A2 power of attorney dated 18.6.1983, in
favour of the 1st defendant to facilitate transfer of the said
property in favour of the 2nd defendant. Ext.A2 power of attorney
was executed on 18.6.1983 and the plaintiff reached Paris on
20.6.1983. The 1st defendant had received Ext.A2 power of
attorney along with Ext.B5 letter dated 27.5.1985 of the plaintiff.
The defendants have also contended that, the plaintiff came to
know about the transfer of plaint schedule property in favour of
the 2nd defendant, in the year 1985 itself, from his brother Sunil
Krishnan (the additional 2nd appellant in this appeal) with whom
he had frequent contacts. After coming to know about such
transfer, the plaintiff cancelled Ext.A2 power of attorney by
Ext.A3 cancellation deed dated 28.9.1985. According to the
defendants, the transaction in favour of the 2nd defendant was
done with the concurrence of the plaintiff and that, the plaintiff
never enjoyed the plaint schedule property. Further, Ext.A4
document dated 14.6.1985 executed by the 1st defendant in
favour of the 2nd defendant is perfectly valid, which is binding on
the plaintiff. Therefore, the plaintiff is not entitled to get the
declaration or injunction as prayed for.
6. Originally, no oral evidence was adduced on the side of
the plaintiff, other than marking Exts.A1 to A4. On the side of the
defendants, the 1st defendant was examined as DW1 and Exts.B1
to B10 were marked. Ext.C1 commission report dated 22.6.1993
was marked as court exhibit.
7. By the judgment and decree dated 29.2.1996 the trial
court decreed O.S.No.23/1992 declaring that Ext.A4 document
No.2697/1985 dated 14.6.1985 is invalid and not binding either
upon the plaint schedule property or the plaintiff and that, the
plaintiff has got right, title and possession over the said property
and he is entitled for a perpetual injunction restraining the 1st
defendant from taking usufructs from the said property and from
obstructing the plaintiff from executing any document concerning
that property.
8. Challenging the judgment and decree of the trial court
dated 29.2.1996 in O.S.No.23/1992, the 1st defendant filed
A.S.No.295/1996 before this Court. As per the order in
I.A.No.2549/2003 dated 5.10.2006, the appellant/1st defendant
was recorded as the legal representative of the deceased 2nd
defendant.
9. By the judgment dated 5.10.2006 in A.S.No.295/1996,
this Court set aside the judgment and decree of the trial court
and remanded O.S.No.23/1992 for fresh trial, permitting the
parties to lead their respective evidence as to the question of
limitation and also the alleged obstruction pleaded in the plaint.
The application for amendment of plaint, viz., I.A.No.2448/2003
was transmitted to the trial court for its consideration.
10. After the order of remand, the plaintiff amended the
plaint as per the order dated 22.9.2007 in I.A.No.91/2007 and
I.A.No.2043/2007. By the order in I.A.No.91/2007 the plaint was
amended by inserting Para.3(a) and reliefs (aa) and (bb). By the
order in I.A.No.2043/2007 Para.8 of the plaint was deleted and
Paras.9 and 10 were renumbered as Paras.8 and 9. Further, the
description of the property in the plaint schedule was amended
by deleting the words "along with a residential building and all
standing improvements thereon".
11. In the amended plaint, the plaintiff contended that,
instead of selling the plaint schedule property for consideration,
the 1st defendant acted against the welfare of the plaintiff. The 1st
defendant has also diverted income from the plaint schedule
property and permitted his second son Sunil Krishnan to enjoy
the same. When the plaintiff came to know about the
mismanagement of the plaint schedule property by the 1st
defendant, he executed Ext.A3 cancellation deed dated
28.9.1985. The plaintiff wanted to state all these facts in his
written statement filed in O.S.No.1399/1994 on the file of the
Munsiff's Court, Thrissur and accordingly he had narrated all
these facts to his counsel. However, while drafting Ext.B3 written
statement in that suit, the counsel failed to present these facts in
the correct perspective and in the chronological order.
12. As per the amended plaint, the plaintiff sought for an
alternative relief of recovery of possession of the plaint schedule
property on the basis of his title, if it is found that the defendants
are in possession of the said property, and also a declaration that
he is the owner having exclusive right, title and interest over that
property by virtue of Ext.A1 document No.2491/74 dated
13.5.1974 of SRO Ollukkara and that, the 2nd defendant has not
acquired any right, title or interest over that property by virtue of
Ext.A4 document No.2697/85 dated 14.6.1985.
13. To the amended plaint, the 1st defendant filed
additional written statement contending that, the intention of the
1st defendant to transfer the plaint schedule property to the 2nd
defendant had been conveyed in the letters sent to the plaintiff.
The allegations that the 1st defendant had diverted the income
from the plaint schedule property and allowed his other son to
enjoy the income therefrom are all baseless. The fact that the
plaintiff came to know about the transaction in favour of the 2nd
defendant in the year 1985 itself is evident from Ext.B3 written
statement filed by him in O.S.No.1399/1994. It was also
contended that, the suit is barred by limitation and that, the
plaintiff is not entitled to get any reliefs prayed for.
14. After the remand, the plaintiff was examined as PW1
and PWs 2 and 3 were examined on his side. Exts.A5 to A11 were
marked on the side of the plaintiff. On the side of the defendants
DW1 (Sunil Krishnan - power of attorney of the 1st defendant)
and DW2 were examined and Exts.B11 to B38 were marked.
Ext.C2 commission report dated 20.2.2008 was marked as court
exhibit.
15. By the judgment and decree dated 23.12.2009 the
trial court decreed O.S.No.23/1992 in part, thereby directing the
1st defendant to surrender possession of the plaint schedule
property to the plaintiff within two months from the date of
judgment, failing which the plaintiff was permitted to seek
recovery by filing execution petition. However, the prayers for
declaration and prohibitory injunction were declined.
16. The trial court held that the plaintiff is the absolute
owner of the plaint schedule property and that, Ext.A4 document
executed by the 1st defendant as power of attorney holder is not
binding on the plaintiff, since the 1st defendant has exceeded his
powers under Ext.A2 power of attorney. However, the trial court
found that the plaintiff failed to prove his possession over the
plaint schedule property as on the date of institution of the suit.
Further, the plaintiff came to know about the execution Ext.A4
document No.2697/85 in the year 1985 itself, as evident from
Ext.B3 written statement in O.S.No.1399/1994, and immediately
he had executed Ext.A3 cancellation deed dated 28.9.1985.
Therefore, the plaintiff ought to have filed the suit for declaration
within three years from the date of knowledge. Having failed to
do so, the prayer for declaration sought for is barred by
limitation. However, the trial court held that, in view of the
finding that the plaintiff is the owner of the plaint schedule
property, he is entitled to get recovery of possession of the said
property, even without a prayer for declaration. In view of the
finding that, the plaintiff had no possession over the plaint
schedule property as on the date of institution of the suit, the
trial court held that he is not entitled for a decree of permanent
prohibitory injunction against the defendants from trespassing
into the said property. On the contention raised as to improper
valuation of the suit and insufficiency of the court-fees paid, the
trial court held that, having failed to raise such a plea in the
written statement, the 1st defendant cannot raise such a
contention at the fag end of the trial.
17. Feeling aggrieved by the judgment and decree of the
trial court dated 23.12.2009 in O.S.No.23/1992 the 1st defendant
filed this appeal, i.e., R.F.A.No.140/2010 under Section 96 of the
Code of Civil Procedure, 1908. During the pendency of this appeal
the original appellant/1st defendant died and his second son was
impleaded as the additional 2nd appellant, as per order dated
1.1.2013 in I.A.No.2489/2012.
18. On receipt of notice in R.F.A.No.140/2010, the
respondent/plaintiff filed Cross Objection No.79/2010, under
Order XLI Rule 22 of the Code of Civil Procedure, challenging the
findings of the trial court as to the plaintiff's possession over the
plaint schedule property after the execution of Ext.A4 document
No.2697/85 and also the finding that, the prayer for declaration
sought for is barred by limitation.
19. We heard arguments of the learned Senior Counsel for
the additional 2nd appellant (legal heir of the original appellant/1st
defendant) and also the learned Senior Counsel for the
respondent/plaintiff.
20. In the plaint, the plaintiff claims title and possession
over the plaint schedule property on the strength of Ext.A1
document dated 13.5.1974 executed by the 1st defendant in his
favour. As per the recitals of Ext.A1 document, the title and
possession of the plaint schedule property has been transferred
absolutely to the plaintiff, with effect from the date of execution
of that document, and the plaintiff has the right to effect
mutation of the said property in his name. As per Ext.A1
document, the plaintiff has absolute right to deal with the plaint
schedule property. However, any documents executed in this
regard during the lifetime of the 1st defendant shall be executed
jointly with him.
21. After the execution of Ext.A1 document, the plaintiff
has executed Ext.A2 power of attorney dated 18.6.1983 in favour
of the 1st defendant. As per the recitals of Ext.A2, the plaintiff
obtained title and possession of the plaint schedule property by
virtue of Ext.A1 document executed by the 1st defendant in his
favour. By Ext.A2 power of attorney, the plaintiff authorised the
1st defendant to execute on his behalf any agreement for sale in
respect of the plaint schedule property, either whole or in part,
after accepting advance sale consideration, and also to execute
sale deed or other documents on his behalf, after accepting
balance sale consideration from the parties concerned. Further,
1st defendant has also been authorised to do on behalf of the
plaintiff, all necessary acts for registration of such documents
with the Sub Registrar Office concerned, and to handover on his
behalf, the possession of the plaint schedule property to the party
concerned.
22. Ext.A3 is a cancellation deed dated 28.9.1985
executed by the plaintiff cancelling Ext.A2 power of attorney in
favour of the 1st defendant. As per the recitals of Ext.A3, the
plaintiff cancelled Ext.A2 power of attorney since he found no
difficulty in managing the plaint schedule property by himself and
when he came to know that the 1st defendant is attempting to
create some documents adversely affecting his rights and
interests over the plaint schedule property.
23. Ext.A4 is a document dated 14.6.1985 executed by
the 1st defendant in favour of the 2nd defendant in respect of the
plaint schedule property. The recitals of Ext.A4 document would
show that, the 1st defendant has executed the said document in
favour of the 2nd defendant as an agent of the plaintiff, as
authorised by Ext.A2 power of attorney. The recitals of Ext.A4
document, which is styled as a sale deed executed by the 1st
defendant in favour of the 2nd defendant, would show that after
execution of Ext.A1 document dated 13.5.1974 by the 1st
defendant, the plaintiff obtained absolute title and possession of
the plaint schedule property. Though a total sale consideration of
Rs.12,000/- is mentioned in Ext.A4 document, as per the recitals
of the said document the 1st defendant relinquished the same and
transferred the plaint schedule property to the 2nd defendant
without any consideration. Therefore, Ext.A4 document can only
be treated as a gift deed. As per Ext.A2 power of attorney, the 1st
defendant has been authorised only to execute any agreement
for sale/sale deed in respect of the plaint schedule property,
either whole or in part, after accepting on behalf of the plaintiff,
advance sale consideration/balance sale consideration from the
party concerned. During chief-examination, the 1st defendant
(DW1) has admitted that, he had asked the plaintiff to include
the plaint schedule property in his property statement submitted
before the Government. According to DW1, he has executed
Ext.A4 document based on Ext.A2 power of attorney and the
plaintiff's letter (Ext.B5 dated 27.5.1985). During cross-
examination, DW1 has admitted that, possession of the plaint
schedule property was given to the plaintiff on execution of
Ext.A1 document. (Deposition of the 1st defendant as DW1,
recorded on 1.2.1996 and 2.2.1996 - Page Nos.6 & 8) The
plaintiff's letter referred to above dated 27.5.1985 was marked
as Ext.B5 during trial. The recitals of the said document would
show that, the plaintiff returned the original of Ext.A2 power of
attorney to the 1st defendant, as insisted by him. A mere return
of the original power of attorney along with Ext.B5 letter would
not entitle the 1st defendant to act beyond his authority as an
agent of the plaintiff under the said power of attorney. Therefore,
while executing Ext.A4 document in favour of the 2nd defendant,
the 1st defendant had acted beyond his authority as an agent of
the plaintiff under Ext.A2 power of attorney and as such, Ext.A4
document will not bind the plaintiff and he can very well ignore
the same. The finding to that effect in the impugned judgment of
the trial court is perfectly legal, which warrants no interference in
this appeal.
24. As per Order VII Rule 3 of the Code of Civil Procedure,
where the subject-matter of the suit is immovable property, the
plaint shall contain a description of the property, sufficient to
identify it, and in case such property can be identified by
boundaries or numbers in a record of settlement or survey, the
plaint shall specify such boundaries or numbers. In Zarif Ahmad
(Died) Through LRs. v. Mohd. Farooq (AIR 2015 SC 1236)
the Apex Court held that, the object of Order VII Rule 3 of the
Code is that the description of the property must be sufficient to
identify it. The property can be identifiable by boundaries or by
number in a public record of settlement or survey. Even by plaint
map showing the location of the disputed immovable property, it
can be described.
25. In the plaint, the plaint schedule property is described
as 3 acres and 93 cents of properties comprised in Sy.No.4/1 of
Madakkathara Village, as per settlement deed No.2491/1974 of
SRO Ollukkara owned and possessed by the plaintiff along with a
residential building and all standing improvements thereon. The
four boundaries of the plaint schedule property are also described
in the plaint. The settlement deed referred to above is one
executed by the 1st defendant in favour of the plaintiff, which has
been marked as Ext.A1 during trial. By the order dated
22.9.2007 in I.A.No.2043/2007, the description of the property in
the plaint schedule was amended by deleting the words "along
with a residential building and all standing improvements
thereon".
26. During cross-examination, the plaintiff as PW1 has
deposed that the residential building was included in the
description of the plaint schedule by an inadvertent mistake and
that, the plaint schedule property and the property owned by the
1st defendant are lying contiguously. Ext.C1 report submitted by
the Advocate Commissioner would show that, the plaint schedule
property can be easily identifiable. The Commissioner has also
marked the plaint schedule property in the plan attached to his
report, which was prepared with the assistance of the Village
Officer. Further, the defendants did not challenge the correctness
of the plan so prepared. As such, the trial court rightly accepted
the plan and sketch which form part of Ext.C1 report and rejected
the contention of the defendants as to the identity of the plaint
schedule property.
27. There is no dispute as to the execution of Ext.A1
document by the 1st defendant in favour of the plaintiff. However,
DW1 deposed that the plaintiff never got possession over the
plaint schedule property on execution of Ext.A1 document.
According to him, the said document was executed only with a
view to escape from the land reforms legislation by limiting the
extent of the holdings. The said version of DW1, however, runs
contrary to the specific recitals of Ext.A1 document that, the 1st
defendant had transferred on the date of execution of that
document, the ownership and possession of the plaint schedule
property absolutely to the plaintiff. Further, During cross-
examination, DW1 has admitted that, possession of the plaint
schedule property was given to the plaintiff on execution of
Ext.A1 document. (Deposition of the 1st defendant as DW1,
recorded on 1.2.1996 and 2.2.1996 - Page No.8)
28. Similarly, there is no dispute as to the execution of
Ext.A2 power of attorney by the plaintiff, authorising the 1st
defendant to execute sale agreement/sale deed in respect of the
plaint schedule property after accepting on behalf of the plaintiff
advance sale consideration/balance sale consideration from the
parties concerned. The recitals of Ext.A2 are to the effect that,
the plaintiff had obtained absolute title and possession of the
plaint schedule property by virtue of Ext.A1 document.
29. It is well settled that, the difference between a
settlement deed and gift deed is very thin and narrow, since a
settlement deed is substantially a gift deed. In a settlement
deed/gift deed properties are transferred voluntarily, gratuitously
and absolutely to the settlee/donee, conferring immediate rights
over the said properties. No specific form of acceptance of a
settlement/gift is prescribed by law. Acceptance can be made
impliedly and need not be in express actions or forms.
Acceptance need not be taken through actual physical
possession. A mere silence of the settlee/donee itself may
amount to acceptance.
30. In the instant case, the 1st defendant as DW1 has
admitted that, he had executed Ext.A4 document in favour of the
2nd defendant on the strength of Ext.A2 power of attorney. The
recitals of Ext.A4 document are to the effect that, the plaintiff
had obtained absolute title and possession of the plaint schedule
property on the strength of Ext.A1 document. Further, the 1st
defendant as DW1 has admitted that, he had asked the plaintiff
to include the plaint schedule property in his property statement
submitted before the Government. The recitals of the said
documents, coupled with the admission made as above by DW1
prove acceptance of the settlement/gift by the plaintiff and also
his possession over the plaint schedule property on the strength
of Ext.A1 document, which possession continued till the execution
of Ext.A4 document in the year 1985.
31. Ext.B9 is the copy of the plaint in O.S.No.256/1978
filed by the plaintiff and the 1st defendant against one Bhaskaran
and others. The averments in the said plaint would indicate that,
even after execution of Ext.A1 document in favour of the plaintiff,
the 1st defendant has retained possession of the plaint schedule
property. PW1 has deposed that, he signed Ext.B9 plaint as
instructed by his father DW1. Ext.B22 is the copy the decree
dated 10.3.1981 of the Sub Court, Thrissur in O.S.No.256/1978,
which would show that, the Receiver was directed to handover
possession of the plaint schedule property to the 1st defendant
herein. Ext.B10 report of the Amin would show that, pursuant to
the said decree possession of the plaint schedule property was
handed over to the 1st defendant. Relying on these documents
the 1st defendant contended that, even after execution of Ext.A1
document he has not parted with the possession of the plaint
schedule property.
32. The specific case of the plaintiff is that, while going
abroad for attending a training programme and higher studies, he
had executed Ext.A2 power of attorney in favour of the 1st
defendant to manage the plaint schedule property in his absence
and to sell the property for consideration. The recitals of Ext.A2
power of attorney would support the case of the plaintiff that he
had obtained possession of the plaint schedule property on the
strength of Ext.A1 document and that, he had executed Ext.A2
power of attorney in favour of the 2nd defendant to manage the
property in his absence. Further, the recitals of Ext.A4 document
executed by the 1st defendant in favour of the 2nd defendant are
to the effect that the plaintiff had obtained absolute title and
possession of the plaint schedule property on the strength of
Ext.A1 document. Therefore, the recitals of Exts.B9, B10 and
B22 are not at all sufficient to accept the contention of the 1st
defendant that, even after execution of Ext.A1 document he has
not parted with possession of the plaint schedule property to the
plaintiff, especially when the 1st defendant as DW1 has admitted
during cross-examination that, possession of the plaint schedule
property was given to the plaintiff on execution of Ext.A1
document.
33. Ext.B2 is the copy of a letter sent by the 1st defendant
to the plaintiff, in which the 1st defendant has admitted the
execution of Ext.A1 document in favour of the plaintiff, with the
intention to transfer title and possession of the plaint schedule
property. As per the recitals of Ext.B2 letter sent by the 1st
defendant to the plaintiff, the 1st defendant had executed Ext.A1
document in favour of the plaintiff bonafide believing that he is a
good human being. But in reality he was not so. Therefore, the 1st
defendant demanded the plaintiff to execute a gift deed in
respect of the plaint schedule property in favour of the 2nd
defendant. The admission made as aforesaid in Ext.B2 letter itself
is sufficient to prove that, the 1st defendant had executed Ext.A1
document with an intention to settle the plaint schedule property
in favour of the plaintiff. Further, the recitals of Ext.B2 letter
would also support the case of the plaintiff, based on the recitals
of Exts.A1, A2 and A4 that, he was in possession of the plaint
schedule property as on the date of execution of Ext.A4
document, i.e., as on 14.6.1985.
34. In Union of India v. Vasavi Co-op. Housing
Society Ltd. (2014 (2) SCC 269) the Apex Court held that, the
plaintiff in a suit for declaration of title and possession could
succeed only on the strength of its own title and that could be
done only by adducing sufficient evidence to discharge the onus
on it, irrespective of the question whether the defendants have
proved their case or not. Even if the title set up by the
defendants is found against, in the absence of establishment of
plaintiff's own title, plaintiff must be non-suited.
35. Therefore, in a suit for declaration of title and
possession, the burden always lies upon the plaintiff to make out
and establish a clear case for granting such a declaration and the
weakness, if any, of the case set up by the defendants would not
be a ground to grant relief to the plaintiff.
36. In the instant case, the recitals of Exts.A1, A2 and A4
would prove the title and possession of the plaint schedule
property by the plaintiff. The defendants have not denied the
execution of Exts.A1, A2 and A4 documents. The recitals of
Ext.A1 deed that, any documents executed by the plaintiff for
transfer of the plaint schedule property during the lifetime of the
1st defendant shall be executed jointly with him, does not indicate
that the 1st defendant had reserved any right or interest over the
said property even after the execution of the said document. The
recitals of Ext.A4 document executed by the 1st defendant in
favour of the 2nd defendant would prove the plaintiff's title and
possession over the plaint schedule property and that, he was in
possession of the said property till 14.6.1985, the date of
execution of Ext.A4. The admission made as above by the 1st
defendant in Ext.A4 document is sufficient to prove the title and
possession of the plaintiff over the plaint schedule property.
Further, the admission made in Ext.B2 letter would prove that,
the 1st defendant had executed Ext.A1 document with an
intention to settle the plaint schedule property in favour of the
plaintiff. Therefore, the plaintiff has established a clear case for
granting a decree for revovery of possession on title, and the
finding to that effect in the impugned judgment is perfectly legal,
which warrants no interference in this appeal.
37. Though, in Ext.A3 cancellation deed the plaintiff has
stated that, the 1st defendant has not executed any documents in
respect of the plaint schedule property on the strength of Ext.A2
power of attorney, in Ext.B3 written statement filed in
O.S.No.1399/1994 (a suit filed by the additional 2nd appellant
herein before the Munsiff's Court, Thrissur) the plaintiff has
admitted that, when he came to know about misuse of Ext.A2
power of attorney it was cancelled by Ext.A3 cancellation deed.
The said admission made in Ext.B3 written statement would show
that, the plaintiff has executed Ext.A3 cancellation deed on
28.9.1985, after knowing about the execution of Ext.A4
document dated 14.6.1985 by the 1st defendant in favour of the
2nd defendant, in respect of the plaint schedule property.
38. The plaintiff filed O.S.No.23/1992 before the trial court
on 13.12.1991, originally seeking for a declaration that Ext.A4
document dated 14.6.1985 executed by the 1st defendant in
favour of the 2nd defendant is void ab initio, not binding upon the
plaint schedule property or the right, title and interest of the
plaintiff in that property; the said document being beyond the
powers of the 1st defendant and that, the plaintiff is having
absolute right, title and possession over that property. The
plaintiff has also sought for a permanent prohibitory injunction
restraining the defendants and their men from taking usufructs
from the plaint schedule property or interfering with his peaceful
possession and enjoyment of the said property, etc.
39. As per Article 58 of the Limitation Act, 1963, the
period of limitation for a suit to obtain any declaration is three
years and the period of limitation begins to run when the right
sue first accrues. In the Board of Trustees of Port Kandla v.
Hargovind Jesraj (2013 (3) SCC 182), following the principle
laid down in State of Punjab v. Gurdev Singh (1991 (4) SCC 1)
the Apex Court held that, the words 'right to sue' ordinarily mean
right to seek relief by means of legal proceedings. Generally, the
right to sue accrues only when the cause of action arises, i.e., the
right to prosecute to obtain relief by legal means. The suit must
be instituted when the right asserted in the suit is infringed or
when there is unequivocal threat to infringe that right by the
defendant against whom the suit is instituted.
40. In Daya Singh v. Gurdev Singh (2010 (2) SCC
124) the Apex Court held that, as per Article 58 of the Limitation
Act, in order to obtain any other declaration, the limitation would
be three years from the date when the right to sue first accrues.
Following the principle laid down by a Three-Judge Bench in
C.Mohammad Yunus v. Syed Unnissa (AIR 1961 SC 808)
the Apex Court held that, the cause of action for the purposes of
Article 58 of the Act accrues only when the right asserted in the
suit is infringed or there is at least a clear and unequivocal threat
to infringe that right.
41. In Khatri Hotels (P) Ltd. v Union of India (2011
(9) SCC 126) the Apex Court held that, while enacting Article 58
of the Limitation Act, 1963, the legislature has designedly made a
departure from the language of Article 120 of the Limitation Act,
1908. The word 'first' has been used between the words 'sue' and
'accrue'. This would mean that, if the suit is based on multiple
cause of action, the period of limitation will begin to run from the
date when the right to sue first accrues. To put it differently,
successive violation of right will not give rise to fresh cause and
the suit will be liable to be dismissed if it is beyond the period of
limitation counted from the date when the right to sue first
accrued.
42. In the instant case, the evidence on record would
clearly establish that the plaintiff has executed Ext.A3
cancellation deed dated 28.9.1985 on coming to know about
Ext.A4 document dated 14.6.1985 executed by the 1st defendant
in favour of the 2nd defendant, in respect of the plaint schedule
property. If that be so, the plaintiff ought to have filed the suit
within a period of three years from the year 1985. In the plaint,
the plaintiff has stated that, the cause of action for the suit arose
on 25.8.1991 when he came to know about Ext.A4 document
executed by the 1st defendant in favour of the 2nd defendant and
on 27.12.1991 when he was sought to be obstructed by the
defendants in taking usufructs and continues therefrom. Since
the plaintiff failed to file the suit for declaration within three years
from the date when the right to sue first accrued, i.e., the date
on which he came to know about Ext.A4 document, the trial court
cannot be found fault with in concluding that the declaratory
relief sought for is barred by limitation.
43. After the order of remand in A.S.No.295/1996, the
plaint was amended as per order dated 22.9.2007 in
I.A.No.91/2007, by inserting reliefs (aa) and (bb). By the said
amendment, the plaintiff sought for an alternate relief of recovery
of possession of the plaint schedule property on the basis of his
title, if it is found that the defendants are in possession of the
same. The plaintiff has also sought for a declaration that he is the
owner having exclusive right, title and interest over the plaint
schedule property by virtue of Ext.A1 document dated 13.5.1974
and that, the 2nd defendant has not acquired any right, title or
interest over that property by virtue of Ext.A4 document dated
14.6.1985. As far as the prayer for recovery of possession of the
plaint schedule property on the strength of title is concerned, as
per Article 65 of the Limitation Act, the period of limitation for a
suit for possession of immovable property or any interest therein
based on title is twelve years and the period begins to run when
the possession of the defendant becomes adverse to the plaintiff.
44. In Jagat Ram v. Varinder Prakash (2006 (4) SCC
482) the Apex Court held that, the limitation prescribed under
Article 65 of the Limitation Act is twelve years beginning from the
date when the possession of the defendant becomes adverse to
the plaintiff.
45. Therefore, in a suit for recovery of possession based
on title, the limitation begins to run only from the time when the
possession of the defendant becomes adverse to the plaintiff, as
provided under Article 65 of the Limitation Act, and not from the
date on which the plaintiff ceased to be in possession. In a suit
for recovery of possession, based on possessory title the plaintiff
would be entitled to dispossess the defendant who had
dispossessed him from the land in question, within twelve years
from the date on which the possession of the defendant becomes
adverse to the plaintiff. In such a suit, it is for the defendant to
establish that he has perfected title to the land in question by
adverse possession for more than twelve years continuously,
openly and without any interruption or interference from the
plaintiff.
46. In Abraham K.J. v. Mariamma Itty (2016 (3) KHC
718) a Division Bench of this Court held that, as it is clear from
Article 65 of the Limitation Act, a right to recover possession of
immovable property by a person on the claim of title can be
defeated by another person after twelve years if only he
establishes that he was holding possession of the property
adverse to the person first mentioned. In other words, in a suit
for recovery of possession of immovable property based on title,
the question of limitation will arise only when the defendant
pleads and proves adverse possession for a continuous period of
twelve years. If the defendant fails to plead and prove adverse
possession for the statutory period, there will be no bar for the
plaintiff in getting recovery of possession of the property on the
basis of title even after twelve years. In the said decision, the
Division Bench has stated in categorical terms that, a claim based
on title paramount is a superior claim and it can be defeated only
in a manner provided by law.
47. In the instant case, going by the recitals of Exts.A1,
A2 and A4 documents, the plaintiff was in possession of the plaint
schedule property as on the date of execution of Ext.A4
document, i.e., as on 14.6.1985. If the date of execution of
Ext.A4 document is taken as the date on which the possession of
the defendants becomes adverse to the plaintiff, the plaintiff
could have filed a suit for recovery of possession on the strength
of Ext.A1 document within twelve years, as provided under
Article 65 of the Limitation Act, i.e., till the year 1997. Therefore,
the suit filed on 30.12.1991 is well within the period of 12 years
from 14.6.1985. Moreover, in the written statement no plea of
adverse possession was set up by the defendants. In the absence
of such a plea of adverse possession setup by the defendants,
there is no bar on the plaintiff in seeking recovery of possession
of the plaint schedule property on the strength of Ext.A1 title
even after twelve years from the date of execution/knowledge of
Ext.A4 document by the 1st defendant in favour of the 2nd
defendant. In that view of the matter, the relief of recovery of
possession sought for on the strength of Ext.A1 title is not barred
by limitation and as such, the trial court cannot be found fault
with in granting the plaintiff recovery of possession of the plaint
schedule property on the strength of title.
48. In Ajudh Raj v. Moti (1991 (3) SCC 136) the Apex
Court held that, if the order has been passed without jurisdiction,
the same can be ignored as a nullity, i.e., non est in the eye of
the law and it is not necessary to set it aside; and such a suit will
be governed by Article 65 of the Limitation Act.
49. In State of Maharashtra v. Pravin Jethalal
Kamdar (dead) by Lrs. (2000 (3) SCC 460), following the
principle laid down by the Constitution Bench in Maharao Sahib
Shri Bhim Singhji v. Union of India (1981 (1) SCC 166) the Apex
Court held that, when an order/deed is without jurisdiction and a
nullity, it was not necessary to seek a declaration about the
invalidity of the said order/deed. The fact of the plaintiff having
sought such a declaration is of no consequence. When possession
has been taken by the defendants pursuant to void documents,
Article 65 of the Limitation Act will apply and the limitation to file
the suit would be twelve years. When these documents are null
and void, ignoring them a suit for possession simpliciter could be
filed and in the course of the suit it could be contended that these
documents are nullity.
50. In Premsingh v. Birbal (2006 (5) SCC 353) the
Apex Court held that, when a document is void ab initio, a decree
for setting aside the same would not be necessary as the same is
non est in the eye of law, as it would be a nullity.
51. A suit which is essentially a suit for recovery of
possession based on title would be governed by Article 65 of the
Limitation Act and the mere fact that a declaration of title was
also sought for would not bring the said suit within Article 58 or
Article 113 of the Limitation Act so as to attract the period of
limitation of three years. Therefore, a suit in which declaratory
relief as well as recovery of possession are sought for on the
basis that that impugned document is void ab initio, can only be
viewed as a suit predominantly for recovery of possession,
attracting Article 65 of the Limitation Act.
52. In Abraham K.J. v. Mariamma Itty (2016 (3) KHC
718) a Division Bench of this Court held that, when the
predominant nature of the suit is one for recovery of possession
of property on the strength of title and declaration is only
subservient to the main prayer, which is claimed only to dispel
the cloud cast on the plaintiffs' title, Article 58 of the Limitation
Act has no application and Article 65 of the said Act applies.
53. Applying the principle laid down in the decisions
referred to supra to the facts and circumstances of the instant
case, it can only be concluded that, the predominant nature of
the suit is one for recovery of possession of the plaint schedule
property on the strength of Ext.A1 title and the prayer for
declaration is only subservient to the main prayer for recovery of
possession, attracting Article 65 of the Limitation Act.
54. The declaratory relief sought for, i.e., a declaration
that the plaintiff is the owner having exclusive right, title and
interest over the plaint schedule property by virtue of Ext.A1
document and that, the 2nd defendant has not acquired any right,
title or interest over that property by virtue of Ext.A4 document,
is only subservient to the main prayer of recovery of possession
on the strength of Ext.A1 title, which is claimed only to dispel the
cloud cast on the plaintiffs' title over the plaint schedule property.
As such Article 65 of the Limitation Act applies and not Article 58.
The fact of the plaintiff having sought for such a declaration is of
no consequence. When the document is null and void, ignoring
the same a suit for possession simpliciter could be filed and in the
course of the suit it could be contended that the said document is
a nullity.
55. In Ext.A4 document dated 14.6.1985 executed by the
1st defendant in favour of the 2nd defendant it has been admitted
that the plaintiff is in possession of the plaint schedule property
till the execution of that document, i.e., till 14.6.1985. As per the
recitals of Ext.A4, the 1st defendant, as an agent of the plaintiff,
put the 2nd defendant in possession of the plaint schedule
property on 14.6.1985. Though the plaintiff cancelled Ext.A2
power of attorney by executing Ext.A3 cancellation deed dated
28.9.1985, the plaintiff could not produce any documents to
prove his possession of the plaint schedule property after 1985.
For seeking the relief of injunction, the plaintiff has to prove
possession over the plaint schedule property as on the date of
suit. In order to prove such possession, the plaintiff has to prove
that he was exercising acts of dominion over the plaint schedule
property as on that date, i.e., as on 30.12.1991. The trial court,
after analysing the oral evidence of Pws.1 and 2, arrived at a
finding that the plaintiff did not get back possession of the plaint
schedule property from the second defendant after 1985. Since
the plaintiff was not successful in proving possession of the plaint
schedule property as on the date of suit, the trial court has
rightly rejected the relief of injunction sought for.
56. Pending suit, the 2nd defendant died on 24.1.1993. The
specific case of the 1st defendant was that, during the lifetime of
the 2nd defendant she had executed a will bequeathing her right
over the plaint schedule property in favour of the 1st defendant.
Since the 1st defendant claimed right over the plaint schedule
property as a legatee under a will executed by the 2nd defendant,
the plaintiff contended that other legal heir of the 2nd defendant
(the addl. 2nd appellant herein) need not be impleaded as a party
to the suit. The plaintiff as PW1 has deposed that, this Court by
the order in A.S.No.295/1996 has recorded the 1st defendant as
the legal heir of the deceased 2nd defendant. Further, there is no
material to show that the addl. 2nd appellant ever challenged the
aforesaid will executed by the 2nd defendant in favour of the 1st
defendant. As such, the trial court cannot be found fault with in
rejecting the contention raised as to non-impleadment of other
legal heirs of the deceased 2nd defendant.
57. As per Para.8 of the plaint, the cause of action for the
suit arose on 25.8.1991 when the plaintiff came to know about
Ext.A4 document executed by the 1st defendant in favour of the
2nd defendant and on 27.12.1991 when the plaintiff was sought to
be obstructed by the defendants in taking usufructs and
continues therefrom. As we have already noticed, in the written
statement no plea of adverse possession was set up by the
defendants. In the absence of such a plea, there is no bar on the
plaintiff in seeking recovery of possession of the plaint schedule
property on the strength of Ext.A1 title, even after twelve years
from the date of execution/knowledge of Ext.A4 document by the
1st defendant in favour of the 2nd defendant. After amendment,
the relief for recovery of possession is sought for on the strength
of Ext.A1 title. The cause of action stated in the plaint is the date
of knowledge of Ext.A4 document and also the obstruction caused
by the defendants on 27.12.1991. When the cause of action for
the relief of recovery of possession is not different from the cause
of action for declaratory relief and injunction sought for in the
original plaint, no amendment of the cause of action stated in the
plaint is required.
58. The plaint before its amendment by the order dated
22.9.2007 in I.A.No.91/2007 contained two reliefs; relief (a) for
declaration that Ext.A4 document is void ab initio and relief (b)
for injunction. In the plaint, the declaratory relief was valued at
12,000/-, as provided under Section 25(a) of the Kerala Court
Fees and Suit Valuation Act, 1959 and the relief for injunction at
16,000/-, as provided under Section 27(c) of the said Act.
Therefore, both the reliefs were independently valued and
separate court-fees paid. After the amendment, two reliefs were
added; relief (aa) for recovery of possession of the plaint
schedule property on the basis of Ext.A1 title, if for any reason it
is found that defendants are in possession, and relief (bb) for
declaration of title by virtue of Ext.A1 title. In the amended
plaint, reliefs (aa) and (bb) were neither valued nor any court-
fees paid. The valuation of the appeal and the cross-objection is
also in respect of reliefs (a) and (b) only.
59. Section 149 of the Code of Civil Procedure, 1908 deals
with the power of the court to make up deficiency of court-fees.
As per Section 149, where the whole or any part of any fee
prescribed for any document by the law for the time being in
force relating to court-fees has not been paid, the court may, in
its discretion, at any stage, allow the person, by whom such fee
is payable, to pay the whole or part, as the case may be, of such
court-fees; and upon such payment the document, in respect of
which such fee is payable, shall have the same force and effect as
if such fee had been paid in the first instance.
60. In Nawab John A. v. V.N. Subramaniyam (2012
(7) SCC 738) the Apex Court held that, from the language of
Section 149 of the Code of Civil Procedure it follows that when a
plaint is presented to a court without the payment of appropriate
court-fees payable thereon, undoubtedly the court has the
authority to call upon the plaintiff to make payment of the
necessary court-fees. Such an authority of the court can be
exercised at any stage of the suit. Therefore, any amount of
lapse of time does not fetter the authority of the court to direct
the payment of such deficit court-fees. As a logical corollary,
even the plaintiff cannot be said to be barred from paying the
deficit court-fees because of the lapse of time.
61. Section 6 of the Kerala Court Fees and Suits Valuation
Act, 1959, deals with multifarious suits. As per sub-section (1) of
Section 6, in any suit in which separate and distinct reliefs are
sought based on the same cause of action, the plaint shall be
chargeable with a fee on the aggregate value of the reliefs. Going
by the proviso to sub-section (1) of Section 6, if the relief is
sought only as ancillary to the main relief, the plaint shall be
charged only on the value of the main relief.
62. Section 12 of the Kerala Court Fees and Suit Valuation
Act deals with decisions as to proper fee in any court other than
the High Court. As per sub-section (1) of Section 12, in every suit
instituted in any court, other than the High Court, the court shall
before ordering the plaint to be registered, decide on the
materials and allegations contained in the plaint and on the
materials contained in the statement, if any, filed under Section
10, the proper court-fees payable thereon, the decision being
however subject to review, further review and correction in the
manner specified in sub-sections (2) to (5) of Section 12.
63. Sub-section (4) of Section 12 empowers the appellate
court to consider either on its own motion or on the application of
any of the parties, the correctness of any order of the court
below as to proper court fee payable on the plaint. Going by
clause (a) to sub-section (4) of Section 12, whenever a case
comes up before a court of appeal, it shall be lawful for the court,
either of its own motion or on the application of any of the
parties, to consider the correctness of any order passed by the
lower court affecting the fee payable on the plaint or in any other
proceedings in the lower court and determine the proper fee
payable thereon. Clause (b) to sub-section (4) of Section 12
provides that, if a court of appeal decides that the fee paid in the
lower court is not sufficient, the court shall require the party
liable to pay the deficit fee within such time as may be fixed by
it. Clause (c) to sub-section (4) of Section 12 provides further
that, if the deficit fee is not paid within the time fixed and the
default is in respect of a relief which has been dismissed by the
lower court and which the appellant seeks in appeal, the appeal
shall be dismissed, but if the default is in respect of a relief which
has been decreed by the lower court, the deficit court-fees shall
be recoverable as if it were an arrear of land revenue.
64. In Paramu v. Balan (2001 (3) KLT 803) a learned
Judge of this Court examined the question as regards the power
of the appellate court to give direction with respect to the
payment of proper court-fees. After referring to sub-section (4)
of Section 12 of the Kerala Court Fees and Suit Valuation Act it
was held that, the appellate court has ample power to direct
payment of deficit court-fees as is done by the lower appellate
court.
65. In P.P.S. Pillai v. Catholic Syrian Bank (2000 (3)
KLT 629) a Division Bench of this Court held that, sub-section
(4) of Section 12 of the Kerala Court Fees and Suit Valuation Act
confers jurisdiction on the appellate court to consider either of its
own motion or on the application of any of the parties the
correctness of the order passed by the trial court affecting the fee
payable on the plaint. If the court of appeal decides that the fee
paid in the lower court was not sufficient, the appellate court
shall require the parties liable to pay the deficit court-fees, within
a time as may be fixed by it. The further provision is that, if the
deficit fee is not paid within the time fixed and the default is in
respect of a relief which has been dismissed by the lower court,
the appeal shall be dismissed. The principle laid down in P.P.S.
Pillai's case (supra) has been reiterated by another Division
Bench of this Court in Peter Cherian v. Abraham (2007 (4)
SCC 680).
66. In the instant case, in the amended plaint the plaintiff
sought for relief (aa) for recovery of possession of the plaint
schedule property on the basis of Ext.A1 title, if for any reason it
is found that defendants are in possession, and relief (bb) for
declaration of title by virtue of Ext.A1 document. However, reliefs
(aa) and (bb) were neither valued nor any court-fees paid. The
valuation of this appeal and cross-objection is also in respect of
reliefs (a) and (b) only. Therefore, the valuation of the plaint in
O.S.No.23/1992, the memorandum of appeal in
R.F.A.No.140/2010 and the memorandum of Cross Objection
No.79/2010 require to be amended by valuing reliefs (aa) and
(bb) on the market value of the plaint schedule property, as
shown in the plaint, and paying court-fees for the said reliefs as
provided under Section 25(a) of the Kerala Court Fees and Suit
Valuation Act, 1959.
67. Accordingly, the appellant is directed to file application
for amending the valuation of the memorandum of appeal in
R.F.A.No.140/2010 and the plaintiff/cross objector is directed to
file applications for amending the valuation of the plaint in
O.S.No.23/1992 and the memorandum of Cross Objection
No.79/2010, within one month from the date of receipt of a
certified copy of this judgment and remit the deficit court-fees
along with the said applications, failing which the consequences
as provided under clause (c) of sub-section (4) of Section 12 of
the Kerala Court Fees and Suit Valuation Act, 1959 would follow.
In the result, the appeal and cross objection fail and are
accordingly dismissed. Parties to bear their respective costs.
Sd/-
P.R. RAMACHANDRA MENON,
JUDGE
Sd/-
ANIL K. NARENDRAN,
JUDGE
PRESENT:
MR.JUSTICE P.R.RAMACHANDRA MENON
&
MR. JUSTICE ANIL K.NARENDRAN
4TH DAYOF NOVEMBER 2016
RFA.No. 140 of 2010
K.K.GOVINDAN
Vs
K.G.PREMSANKAR, I
This appeal and cross-objection arise out of the judgment and
decree of the Subordinate Judge's Court, Thrissur dated 23.12.2009
in O.S.No.23/1992. It was a suit for declaration and perpetual
injunction filed by the plaintiff (the respondent in this appeal) in
respect of the plaint schedule property having an extent of 3.93
acres, comprised in Sy.No.4/1 of Madakkathara Village, covered by
Ext.A1 settlement deed No.2491/74 of SRO Ollukkara dated
13.5.1974.
2. Pending suit, the 2nd defendant (mother of the plaintiff)
died on 24.1.1993. Since the 2nd defendant had executed a will
bequeathing the plaint schedule property to the 1st defendant, the
trial court found that the suit does not abate even if her second son
(the additional 2nd appellant herein) is not brought on record.
3. The original appellant/1st defendant (father of the
plaintiff) died during the pendency of this appeal and his second son
was impleaded as the additional 2nd appellant, as per the order
dated 1.1.2013 in I.A.No.2489/2012.
4. Going by the plaint averments, the plaint schedule
property belongs to the plaintiff, which he obtained as per Ext.A1
settlement deed No.2491/74 of SRO Ollukkara dated 13.5.1974.
The 1st defendant is the father and the 2nd defendant is the
mother of the plaintiff. Since the plaintiff had to go abroad for
advance training and higher studies, he executed Ext.A2 power of
attorney No.277/83 of SRO Ollukkara dated 18.6.1983 in favour
of the 1st defendant, authorising him to sell the plaint schedule
property for sufficient consideration. By the end of 1984, the
plaintiff returned to India and thereupon, he cancelled Ext.A2
power of attorney, by executing Ext.A3 cancellation deed bearing
No.433/85 of SRO Ollukkara dated 28.9.1985. The defendants
came to know about the cancellation of Ext.A2 power of attorney
immediately after execution of Ext.A3 deed. While the plaintiff
was abroad, the 1st defendant was managing the plaint schedule
property by virtue of Ext.A2 power of attorney and he does not
have any independent right over the said property. On
25.8.1991, the plaintiff came to know that the 1st defendant
fraudulently and in violation of the trust reposed on him by the
plaintiff, executed Ext.A4 document No.2697/85 of SRO
Ollukkara dated 14.6.1985 on the strength of Ext.A2 power of
attorney. As per the recitals in Ext.A4 document, the 1st
defendant gifted the plaint schedule property to the 2nd
defendant. The plaintiff contended that, the 1st defendant has no
power to execute a document like Ext.A4 and that, the 2nd
defendant did not obtain any right over the said property on the
strength of Ext.A4. Therefore, in the plaint, the plaintiff sought
for a declaration that, Ext.A4 document No.2697/1985 dated
14.6.1985 of SRO Ollukkara is void ab initio, not binding upon
the plaint schedule property or his right, title and interest over
the said property and that, he is having absolute right, title and
possession over that property. The plaintiff has also sought for a
permanent prohibitory injunction restraining the defendants and
their men from taking usufructs from the plaint schedule property
or interfering with his peaceful possession and enjoyment of the
said property or executing any documents concerning the same
in the name of any person other than the plaintiff or inducting
strangers into the said property or committing any waste therein.
5. The defendants filed a joint written statement,
contending that, the plaintiff has not obtained any right over the
plaint schedule property as per Ext.A1 document dated
13.5.1974. The said document was never acted upon and was not
intended to be acted upon. Ext.A1 document was executed only
with a view to escape from the land reforms legislation, by
limiting the extent of the holdings. The plaintiff has no right or
possession over the plaint schedule property, which continued to
be in the possession of the 1st defendant till 14.6.1985, the date
on which he delivered the said property to the 2nd defendant on
the strength of Ext.A4 deed. Regarding execution of Ext.A2 power
of attorney dated 18.6.1983, the defendants contended that the
said document was not executed for selling the plaint schedule
property. In fact, the 1st defendant was asking the plaintiff to
execute a gift deed in respect of the plaint schedule property in
favour of the 2nd defendant before he was planning to go abroad.
The plaintiff had agreed to do so and he had taken Ext.A1
document with a promise to execute a gift deed in favour of the
2nd defendant. Since the plaintiff was in a hurry to go abroad, he
had executed Ext.A2 power of attorney dated 18.6.1983, in
favour of the 1st defendant to facilitate transfer of the said
property in favour of the 2nd defendant. Ext.A2 power of attorney
was executed on 18.6.1983 and the plaintiff reached Paris on
20.6.1983. The 1st defendant had received Ext.A2 power of
attorney along with Ext.B5 letter dated 27.5.1985 of the plaintiff.
The defendants have also contended that, the plaintiff came to
know about the transfer of plaint schedule property in favour of
the 2nd defendant, in the year 1985 itself, from his brother Sunil
Krishnan (the additional 2nd appellant in this appeal) with whom
he had frequent contacts. After coming to know about such
transfer, the plaintiff cancelled Ext.A2 power of attorney by
Ext.A3 cancellation deed dated 28.9.1985. According to the
defendants, the transaction in favour of the 2nd defendant was
done with the concurrence of the plaintiff and that, the plaintiff
never enjoyed the plaint schedule property. Further, Ext.A4
document dated 14.6.1985 executed by the 1st defendant in
favour of the 2nd defendant is perfectly valid, which is binding on
the plaintiff. Therefore, the plaintiff is not entitled to get the
declaration or injunction as prayed for.
6. Originally, no oral evidence was adduced on the side of
the plaintiff, other than marking Exts.A1 to A4. On the side of the
defendants, the 1st defendant was examined as DW1 and Exts.B1
to B10 were marked. Ext.C1 commission report dated 22.6.1993
was marked as court exhibit.
7. By the judgment and decree dated 29.2.1996 the trial
court decreed O.S.No.23/1992 declaring that Ext.A4 document
No.2697/1985 dated 14.6.1985 is invalid and not binding either
upon the plaint schedule property or the plaintiff and that, the
plaintiff has got right, title and possession over the said property
and he is entitled for a perpetual injunction restraining the 1st
defendant from taking usufructs from the said property and from
obstructing the plaintiff from executing any document concerning
that property.
8. Challenging the judgment and decree of the trial court
dated 29.2.1996 in O.S.No.23/1992, the 1st defendant filed
A.S.No.295/1996 before this Court. As per the order in
I.A.No.2549/2003 dated 5.10.2006, the appellant/1st defendant
was recorded as the legal representative of the deceased 2nd
defendant.
9. By the judgment dated 5.10.2006 in A.S.No.295/1996,
this Court set aside the judgment and decree of the trial court
and remanded O.S.No.23/1992 for fresh trial, permitting the
parties to lead their respective evidence as to the question of
limitation and also the alleged obstruction pleaded in the plaint.
The application for amendment of plaint, viz., I.A.No.2448/2003
was transmitted to the trial court for its consideration.
10. After the order of remand, the plaintiff amended the
plaint as per the order dated 22.9.2007 in I.A.No.91/2007 and
I.A.No.2043/2007. By the order in I.A.No.91/2007 the plaint was
amended by inserting Para.3(a) and reliefs (aa) and (bb). By the
order in I.A.No.2043/2007 Para.8 of the plaint was deleted and
Paras.9 and 10 were renumbered as Paras.8 and 9. Further, the
description of the property in the plaint schedule was amended
by deleting the words "along with a residential building and all
standing improvements thereon".
11. In the amended plaint, the plaintiff contended that,
instead of selling the plaint schedule property for consideration,
the 1st defendant acted against the welfare of the plaintiff. The 1st
defendant has also diverted income from the plaint schedule
property and permitted his second son Sunil Krishnan to enjoy
the same. When the plaintiff came to know about the
mismanagement of the plaint schedule property by the 1st
defendant, he executed Ext.A3 cancellation deed dated
28.9.1985. The plaintiff wanted to state all these facts in his
written statement filed in O.S.No.1399/1994 on the file of the
Munsiff's Court, Thrissur and accordingly he had narrated all
these facts to his counsel. However, while drafting Ext.B3 written
statement in that suit, the counsel failed to present these facts in
the correct perspective and in the chronological order.
12. As per the amended plaint, the plaintiff sought for an
alternative relief of recovery of possession of the plaint schedule
property on the basis of his title, if it is found that the defendants
are in possession of the said property, and also a declaration that
he is the owner having exclusive right, title and interest over that
property by virtue of Ext.A1 document No.2491/74 dated
13.5.1974 of SRO Ollukkara and that, the 2nd defendant has not
acquired any right, title or interest over that property by virtue of
Ext.A4 document No.2697/85 dated 14.6.1985.
13. To the amended plaint, the 1st defendant filed
additional written statement contending that, the intention of the
1st defendant to transfer the plaint schedule property to the 2nd
defendant had been conveyed in the letters sent to the plaintiff.
The allegations that the 1st defendant had diverted the income
from the plaint schedule property and allowed his other son to
enjoy the income therefrom are all baseless. The fact that the
plaintiff came to know about the transaction in favour of the 2nd
defendant in the year 1985 itself is evident from Ext.B3 written
statement filed by him in O.S.No.1399/1994. It was also
contended that, the suit is barred by limitation and that, the
plaintiff is not entitled to get any reliefs prayed for.
14. After the remand, the plaintiff was examined as PW1
and PWs 2 and 3 were examined on his side. Exts.A5 to A11 were
marked on the side of the plaintiff. On the side of the defendants
DW1 (Sunil Krishnan - power of attorney of the 1st defendant)
and DW2 were examined and Exts.B11 to B38 were marked.
Ext.C2 commission report dated 20.2.2008 was marked as court
exhibit.
15. By the judgment and decree dated 23.12.2009 the
trial court decreed O.S.No.23/1992 in part, thereby directing the
1st defendant to surrender possession of the plaint schedule
property to the plaintiff within two months from the date of
judgment, failing which the plaintiff was permitted to seek
recovery by filing execution petition. However, the prayers for
declaration and prohibitory injunction were declined.
16. The trial court held that the plaintiff is the absolute
owner of the plaint schedule property and that, Ext.A4 document
executed by the 1st defendant as power of attorney holder is not
binding on the plaintiff, since the 1st defendant has exceeded his
powers under Ext.A2 power of attorney. However, the trial court
found that the plaintiff failed to prove his possession over the
plaint schedule property as on the date of institution of the suit.
Further, the plaintiff came to know about the execution Ext.A4
document No.2697/85 in the year 1985 itself, as evident from
Ext.B3 written statement in O.S.No.1399/1994, and immediately
he had executed Ext.A3 cancellation deed dated 28.9.1985.
Therefore, the plaintiff ought to have filed the suit for declaration
within three years from the date of knowledge. Having failed to
do so, the prayer for declaration sought for is barred by
limitation. However, the trial court held that, in view of the
finding that the plaintiff is the owner of the plaint schedule
property, he is entitled to get recovery of possession of the said
property, even without a prayer for declaration. In view of the
finding that, the plaintiff had no possession over the plaint
schedule property as on the date of institution of the suit, the
trial court held that he is not entitled for a decree of permanent
prohibitory injunction against the defendants from trespassing
into the said property. On the contention raised as to improper
valuation of the suit and insufficiency of the court-fees paid, the
trial court held that, having failed to raise such a plea in the
written statement, the 1st defendant cannot raise such a
contention at the fag end of the trial.
17. Feeling aggrieved by the judgment and decree of the
trial court dated 23.12.2009 in O.S.No.23/1992 the 1st defendant
filed this appeal, i.e., R.F.A.No.140/2010 under Section 96 of the
Code of Civil Procedure, 1908. During the pendency of this appeal
the original appellant/1st defendant died and his second son was
impleaded as the additional 2nd appellant, as per order dated
1.1.2013 in I.A.No.2489/2012.
18. On receipt of notice in R.F.A.No.140/2010, the
respondent/plaintiff filed Cross Objection No.79/2010, under
Order XLI Rule 22 of the Code of Civil Procedure, challenging the
findings of the trial court as to the plaintiff's possession over the
plaint schedule property after the execution of Ext.A4 document
No.2697/85 and also the finding that, the prayer for declaration
sought for is barred by limitation.
19. We heard arguments of the learned Senior Counsel for
the additional 2nd appellant (legal heir of the original appellant/1st
defendant) and also the learned Senior Counsel for the
respondent/plaintiff.
20. In the plaint, the plaintiff claims title and possession
over the plaint schedule property on the strength of Ext.A1
document dated 13.5.1974 executed by the 1st defendant in his
favour. As per the recitals of Ext.A1 document, the title and
possession of the plaint schedule property has been transferred
absolutely to the plaintiff, with effect from the date of execution
of that document, and the plaintiff has the right to effect
mutation of the said property in his name. As per Ext.A1
document, the plaintiff has absolute right to deal with the plaint
schedule property. However, any documents executed in this
regard during the lifetime of the 1st defendant shall be executed
jointly with him.
21. After the execution of Ext.A1 document, the plaintiff
has executed Ext.A2 power of attorney dated 18.6.1983 in favour
of the 1st defendant. As per the recitals of Ext.A2, the plaintiff
obtained title and possession of the plaint schedule property by
virtue of Ext.A1 document executed by the 1st defendant in his
favour. By Ext.A2 power of attorney, the plaintiff authorised the
1st defendant to execute on his behalf any agreement for sale in
respect of the plaint schedule property, either whole or in part,
after accepting advance sale consideration, and also to execute
sale deed or other documents on his behalf, after accepting
balance sale consideration from the parties concerned. Further,
1st defendant has also been authorised to do on behalf of the
plaintiff, all necessary acts for registration of such documents
with the Sub Registrar Office concerned, and to handover on his
behalf, the possession of the plaint schedule property to the party
concerned.
22. Ext.A3 is a cancellation deed dated 28.9.1985
executed by the plaintiff cancelling Ext.A2 power of attorney in
favour of the 1st defendant. As per the recitals of Ext.A3, the
plaintiff cancelled Ext.A2 power of attorney since he found no
difficulty in managing the plaint schedule property by himself and
when he came to know that the 1st defendant is attempting to
create some documents adversely affecting his rights and
interests over the plaint schedule property.
23. Ext.A4 is a document dated 14.6.1985 executed by
the 1st defendant in favour of the 2nd defendant in respect of the
plaint schedule property. The recitals of Ext.A4 document would
show that, the 1st defendant has executed the said document in
favour of the 2nd defendant as an agent of the plaintiff, as
authorised by Ext.A2 power of attorney. The recitals of Ext.A4
document, which is styled as a sale deed executed by the 1st
defendant in favour of the 2nd defendant, would show that after
execution of Ext.A1 document dated 13.5.1974 by the 1st
defendant, the plaintiff obtained absolute title and possession of
the plaint schedule property. Though a total sale consideration of
Rs.12,000/- is mentioned in Ext.A4 document, as per the recitals
of the said document the 1st defendant relinquished the same and
transferred the plaint schedule property to the 2nd defendant
without any consideration. Therefore, Ext.A4 document can only
be treated as a gift deed. As per Ext.A2 power of attorney, the 1st
defendant has been authorised only to execute any agreement
for sale/sale deed in respect of the plaint schedule property,
either whole or in part, after accepting on behalf of the plaintiff,
advance sale consideration/balance sale consideration from the
party concerned. During chief-examination, the 1st defendant
(DW1) has admitted that, he had asked the plaintiff to include
the plaint schedule property in his property statement submitted
before the Government. According to DW1, he has executed
Ext.A4 document based on Ext.A2 power of attorney and the
plaintiff's letter (Ext.B5 dated 27.5.1985). During cross-
examination, DW1 has admitted that, possession of the plaint
schedule property was given to the plaintiff on execution of
Ext.A1 document. (Deposition of the 1st defendant as DW1,
recorded on 1.2.1996 and 2.2.1996 - Page Nos.6 & 8) The
plaintiff's letter referred to above dated 27.5.1985 was marked
as Ext.B5 during trial. The recitals of the said document would
show that, the plaintiff returned the original of Ext.A2 power of
attorney to the 1st defendant, as insisted by him. A mere return
of the original power of attorney along with Ext.B5 letter would
not entitle the 1st defendant to act beyond his authority as an
agent of the plaintiff under the said power of attorney. Therefore,
while executing Ext.A4 document in favour of the 2nd defendant,
the 1st defendant had acted beyond his authority as an agent of
the plaintiff under Ext.A2 power of attorney and as such, Ext.A4
document will not bind the plaintiff and he can very well ignore
the same. The finding to that effect in the impugned judgment of
the trial court is perfectly legal, which warrants no interference in
this appeal.
24. As per Order VII Rule 3 of the Code of Civil Procedure,
where the subject-matter of the suit is immovable property, the
plaint shall contain a description of the property, sufficient to
identify it, and in case such property can be identified by
boundaries or numbers in a record of settlement or survey, the
plaint shall specify such boundaries or numbers. In Zarif Ahmad
(Died) Through LRs. v. Mohd. Farooq (AIR 2015 SC 1236)
the Apex Court held that, the object of Order VII Rule 3 of the
Code is that the description of the property must be sufficient to
identify it. The property can be identifiable by boundaries or by
number in a public record of settlement or survey. Even by plaint
map showing the location of the disputed immovable property, it
can be described.
25. In the plaint, the plaint schedule property is described
as 3 acres and 93 cents of properties comprised in Sy.No.4/1 of
Madakkathara Village, as per settlement deed No.2491/1974 of
SRO Ollukkara owned and possessed by the plaintiff along with a
residential building and all standing improvements thereon. The
four boundaries of the plaint schedule property are also described
in the plaint. The settlement deed referred to above is one
executed by the 1st defendant in favour of the plaintiff, which has
been marked as Ext.A1 during trial. By the order dated
22.9.2007 in I.A.No.2043/2007, the description of the property in
the plaint schedule was amended by deleting the words "along
with a residential building and all standing improvements
thereon".
26. During cross-examination, the plaintiff as PW1 has
deposed that the residential building was included in the
description of the plaint schedule by an inadvertent mistake and
that, the plaint schedule property and the property owned by the
1st defendant are lying contiguously. Ext.C1 report submitted by
the Advocate Commissioner would show that, the plaint schedule
property can be easily identifiable. The Commissioner has also
marked the plaint schedule property in the plan attached to his
report, which was prepared with the assistance of the Village
Officer. Further, the defendants did not challenge the correctness
of the plan so prepared. As such, the trial court rightly accepted
the plan and sketch which form part of Ext.C1 report and rejected
the contention of the defendants as to the identity of the plaint
schedule property.
27. There is no dispute as to the execution of Ext.A1
document by the 1st defendant in favour of the plaintiff. However,
DW1 deposed that the plaintiff never got possession over the
plaint schedule property on execution of Ext.A1 document.
According to him, the said document was executed only with a
view to escape from the land reforms legislation by limiting the
extent of the holdings. The said version of DW1, however, runs
contrary to the specific recitals of Ext.A1 document that, the 1st
defendant had transferred on the date of execution of that
document, the ownership and possession of the plaint schedule
property absolutely to the plaintiff. Further, During cross-
examination, DW1 has admitted that, possession of the plaint
schedule property was given to the plaintiff on execution of
Ext.A1 document. (Deposition of the 1st defendant as DW1,
recorded on 1.2.1996 and 2.2.1996 - Page No.8)
28. Similarly, there is no dispute as to the execution of
Ext.A2 power of attorney by the plaintiff, authorising the 1st
defendant to execute sale agreement/sale deed in respect of the
plaint schedule property after accepting on behalf of the plaintiff
advance sale consideration/balance sale consideration from the
parties concerned. The recitals of Ext.A2 are to the effect that,
the plaintiff had obtained absolute title and possession of the
plaint schedule property by virtue of Ext.A1 document.
29. It is well settled that, the difference between a
settlement deed and gift deed is very thin and narrow, since a
settlement deed is substantially a gift deed. In a settlement
deed/gift deed properties are transferred voluntarily, gratuitously
and absolutely to the settlee/donee, conferring immediate rights
over the said properties. No specific form of acceptance of a
settlement/gift is prescribed by law. Acceptance can be made
impliedly and need not be in express actions or forms.
Acceptance need not be taken through actual physical
possession. A mere silence of the settlee/donee itself may
amount to acceptance.
30. In the instant case, the 1st defendant as DW1 has
admitted that, he had executed Ext.A4 document in favour of the
2nd defendant on the strength of Ext.A2 power of attorney. The
recitals of Ext.A4 document are to the effect that, the plaintiff
had obtained absolute title and possession of the plaint schedule
property on the strength of Ext.A1 document. Further, the 1st
defendant as DW1 has admitted that, he had asked the plaintiff
to include the plaint schedule property in his property statement
submitted before the Government. The recitals of the said
documents, coupled with the admission made as above by DW1
prove acceptance of the settlement/gift by the plaintiff and also
his possession over the plaint schedule property on the strength
of Ext.A1 document, which possession continued till the execution
of Ext.A4 document in the year 1985.
31. Ext.B9 is the copy of the plaint in O.S.No.256/1978
filed by the plaintiff and the 1st defendant against one Bhaskaran
and others. The averments in the said plaint would indicate that,
even after execution of Ext.A1 document in favour of the plaintiff,
the 1st defendant has retained possession of the plaint schedule
property. PW1 has deposed that, he signed Ext.B9 plaint as
instructed by his father DW1. Ext.B22 is the copy the decree
dated 10.3.1981 of the Sub Court, Thrissur in O.S.No.256/1978,
which would show that, the Receiver was directed to handover
possession of the plaint schedule property to the 1st defendant
herein. Ext.B10 report of the Amin would show that, pursuant to
the said decree possession of the plaint schedule property was
handed over to the 1st defendant. Relying on these documents
the 1st defendant contended that, even after execution of Ext.A1
document he has not parted with the possession of the plaint
schedule property.
32. The specific case of the plaintiff is that, while going
abroad for attending a training programme and higher studies, he
had executed Ext.A2 power of attorney in favour of the 1st
defendant to manage the plaint schedule property in his absence
and to sell the property for consideration. The recitals of Ext.A2
power of attorney would support the case of the plaintiff that he
had obtained possession of the plaint schedule property on the
strength of Ext.A1 document and that, he had executed Ext.A2
power of attorney in favour of the 2nd defendant to manage the
property in his absence. Further, the recitals of Ext.A4 document
executed by the 1st defendant in favour of the 2nd defendant are
to the effect that the plaintiff had obtained absolute title and
possession of the plaint schedule property on the strength of
Ext.A1 document. Therefore, the recitals of Exts.B9, B10 and
B22 are not at all sufficient to accept the contention of the 1st
defendant that, even after execution of Ext.A1 document he has
not parted with possession of the plaint schedule property to the
plaintiff, especially when the 1st defendant as DW1 has admitted
during cross-examination that, possession of the plaint schedule
property was given to the plaintiff on execution of Ext.A1
document.
33. Ext.B2 is the copy of a letter sent by the 1st defendant
to the plaintiff, in which the 1st defendant has admitted the
execution of Ext.A1 document in favour of the plaintiff, with the
intention to transfer title and possession of the plaint schedule
property. As per the recitals of Ext.B2 letter sent by the 1st
defendant to the plaintiff, the 1st defendant had executed Ext.A1
document in favour of the plaintiff bonafide believing that he is a
good human being. But in reality he was not so. Therefore, the 1st
defendant demanded the plaintiff to execute a gift deed in
respect of the plaint schedule property in favour of the 2nd
defendant. The admission made as aforesaid in Ext.B2 letter itself
is sufficient to prove that, the 1st defendant had executed Ext.A1
document with an intention to settle the plaint schedule property
in favour of the plaintiff. Further, the recitals of Ext.B2 letter
would also support the case of the plaintiff, based on the recitals
of Exts.A1, A2 and A4 that, he was in possession of the plaint
schedule property as on the date of execution of Ext.A4
document, i.e., as on 14.6.1985.
34. In Union of India v. Vasavi Co-op. Housing
Society Ltd. (2014 (2) SCC 269) the Apex Court held that, the
plaintiff in a suit for declaration of title and possession could
succeed only on the strength of its own title and that could be
done only by adducing sufficient evidence to discharge the onus
on it, irrespective of the question whether the defendants have
proved their case or not. Even if the title set up by the
defendants is found against, in the absence of establishment of
plaintiff's own title, plaintiff must be non-suited.
35. Therefore, in a suit for declaration of title and
possession, the burden always lies upon the plaintiff to make out
and establish a clear case for granting such a declaration and the
weakness, if any, of the case set up by the defendants would not
be a ground to grant relief to the plaintiff.
36. In the instant case, the recitals of Exts.A1, A2 and A4
would prove the title and possession of the plaint schedule
property by the plaintiff. The defendants have not denied the
execution of Exts.A1, A2 and A4 documents. The recitals of
Ext.A1 deed that, any documents executed by the plaintiff for
transfer of the plaint schedule property during the lifetime of the
1st defendant shall be executed jointly with him, does not indicate
that the 1st defendant had reserved any right or interest over the
said property even after the execution of the said document. The
recitals of Ext.A4 document executed by the 1st defendant in
favour of the 2nd defendant would prove the plaintiff's title and
possession over the plaint schedule property and that, he was in
possession of the said property till 14.6.1985, the date of
execution of Ext.A4. The admission made as above by the 1st
defendant in Ext.A4 document is sufficient to prove the title and
possession of the plaintiff over the plaint schedule property.
Further, the admission made in Ext.B2 letter would prove that,
the 1st defendant had executed Ext.A1 document with an
intention to settle the plaint schedule property in favour of the
plaintiff. Therefore, the plaintiff has established a clear case for
granting a decree for revovery of possession on title, and the
finding to that effect in the impugned judgment is perfectly legal,
which warrants no interference in this appeal.
37. Though, in Ext.A3 cancellation deed the plaintiff has
stated that, the 1st defendant has not executed any documents in
respect of the plaint schedule property on the strength of Ext.A2
power of attorney, in Ext.B3 written statement filed in
O.S.No.1399/1994 (a suit filed by the additional 2nd appellant
herein before the Munsiff's Court, Thrissur) the plaintiff has
admitted that, when he came to know about misuse of Ext.A2
power of attorney it was cancelled by Ext.A3 cancellation deed.
The said admission made in Ext.B3 written statement would show
that, the plaintiff has executed Ext.A3 cancellation deed on
28.9.1985, after knowing about the execution of Ext.A4
document dated 14.6.1985 by the 1st defendant in favour of the
2nd defendant, in respect of the plaint schedule property.
38. The plaintiff filed O.S.No.23/1992 before the trial court
on 13.12.1991, originally seeking for a declaration that Ext.A4
document dated 14.6.1985 executed by the 1st defendant in
favour of the 2nd defendant is void ab initio, not binding upon the
plaint schedule property or the right, title and interest of the
plaintiff in that property; the said document being beyond the
powers of the 1st defendant and that, the plaintiff is having
absolute right, title and possession over that property. The
plaintiff has also sought for a permanent prohibitory injunction
restraining the defendants and their men from taking usufructs
from the plaint schedule property or interfering with his peaceful
possession and enjoyment of the said property, etc.
39. As per Article 58 of the Limitation Act, 1963, the
period of limitation for a suit to obtain any declaration is three
years and the period of limitation begins to run when the right
sue first accrues. In the Board of Trustees of Port Kandla v.
Hargovind Jesraj (2013 (3) SCC 182), following the principle
laid down in State of Punjab v. Gurdev Singh (1991 (4) SCC 1)
the Apex Court held that, the words 'right to sue' ordinarily mean
right to seek relief by means of legal proceedings. Generally, the
right to sue accrues only when the cause of action arises, i.e., the
right to prosecute to obtain relief by legal means. The suit must
be instituted when the right asserted in the suit is infringed or
when there is unequivocal threat to infringe that right by the
defendant against whom the suit is instituted.
40. In Daya Singh v. Gurdev Singh (2010 (2) SCC
124) the Apex Court held that, as per Article 58 of the Limitation
Act, in order to obtain any other declaration, the limitation would
be three years from the date when the right to sue first accrues.
Following the principle laid down by a Three-Judge Bench in
C.Mohammad Yunus v. Syed Unnissa (AIR 1961 SC 808)
the Apex Court held that, the cause of action for the purposes of
Article 58 of the Act accrues only when the right asserted in the
suit is infringed or there is at least a clear and unequivocal threat
to infringe that right.
41. In Khatri Hotels (P) Ltd. v Union of India (2011
(9) SCC 126) the Apex Court held that, while enacting Article 58
of the Limitation Act, 1963, the legislature has designedly made a
departure from the language of Article 120 of the Limitation Act,
1908. The word 'first' has been used between the words 'sue' and
'accrue'. This would mean that, if the suit is based on multiple
cause of action, the period of limitation will begin to run from the
date when the right to sue first accrues. To put it differently,
successive violation of right will not give rise to fresh cause and
the suit will be liable to be dismissed if it is beyond the period of
limitation counted from the date when the right to sue first
accrued.
42. In the instant case, the evidence on record would
clearly establish that the plaintiff has executed Ext.A3
cancellation deed dated 28.9.1985 on coming to know about
Ext.A4 document dated 14.6.1985 executed by the 1st defendant
in favour of the 2nd defendant, in respect of the plaint schedule
property. If that be so, the plaintiff ought to have filed the suit
within a period of three years from the year 1985. In the plaint,
the plaintiff has stated that, the cause of action for the suit arose
on 25.8.1991 when he came to know about Ext.A4 document
executed by the 1st defendant in favour of the 2nd defendant and
on 27.12.1991 when he was sought to be obstructed by the
defendants in taking usufructs and continues therefrom. Since
the plaintiff failed to file the suit for declaration within three years
from the date when the right to sue first accrued, i.e., the date
on which he came to know about Ext.A4 document, the trial court
cannot be found fault with in concluding that the declaratory
relief sought for is barred by limitation.
43. After the order of remand in A.S.No.295/1996, the
plaint was amended as per order dated 22.9.2007 in
I.A.No.91/2007, by inserting reliefs (aa) and (bb). By the said
amendment, the plaintiff sought for an alternate relief of recovery
of possession of the plaint schedule property on the basis of his
title, if it is found that the defendants are in possession of the
same. The plaintiff has also sought for a declaration that he is the
owner having exclusive right, title and interest over the plaint
schedule property by virtue of Ext.A1 document dated 13.5.1974
and that, the 2nd defendant has not acquired any right, title or
interest over that property by virtue of Ext.A4 document dated
14.6.1985. As far as the prayer for recovery of possession of the
plaint schedule property on the strength of title is concerned, as
per Article 65 of the Limitation Act, the period of limitation for a
suit for possession of immovable property or any interest therein
based on title is twelve years and the period begins to run when
the possession of the defendant becomes adverse to the plaintiff.
44. In Jagat Ram v. Varinder Prakash (2006 (4) SCC
482) the Apex Court held that, the limitation prescribed under
Article 65 of the Limitation Act is twelve years beginning from the
date when the possession of the defendant becomes adverse to
the plaintiff.
45. Therefore, in a suit for recovery of possession based
on title, the limitation begins to run only from the time when the
possession of the defendant becomes adverse to the plaintiff, as
provided under Article 65 of the Limitation Act, and not from the
date on which the plaintiff ceased to be in possession. In a suit
for recovery of possession, based on possessory title the plaintiff
would be entitled to dispossess the defendant who had
dispossessed him from the land in question, within twelve years
from the date on which the possession of the defendant becomes
adverse to the plaintiff. In such a suit, it is for the defendant to
establish that he has perfected title to the land in question by
adverse possession for more than twelve years continuously,
openly and without any interruption or interference from the
plaintiff.
46. In Abraham K.J. v. Mariamma Itty (2016 (3) KHC
718) a Division Bench of this Court held that, as it is clear from
Article 65 of the Limitation Act, a right to recover possession of
immovable property by a person on the claim of title can be
defeated by another person after twelve years if only he
establishes that he was holding possession of the property
adverse to the person first mentioned. In other words, in a suit
for recovery of possession of immovable property based on title,
the question of limitation will arise only when the defendant
pleads and proves adverse possession for a continuous period of
twelve years. If the defendant fails to plead and prove adverse
possession for the statutory period, there will be no bar for the
plaintiff in getting recovery of possession of the property on the
basis of title even after twelve years. In the said decision, the
Division Bench has stated in categorical terms that, a claim based
on title paramount is a superior claim and it can be defeated only
in a manner provided by law.
47. In the instant case, going by the recitals of Exts.A1,
A2 and A4 documents, the plaintiff was in possession of the plaint
schedule property as on the date of execution of Ext.A4
document, i.e., as on 14.6.1985. If the date of execution of
Ext.A4 document is taken as the date on which the possession of
the defendants becomes adverse to the plaintiff, the plaintiff
could have filed a suit for recovery of possession on the strength
of Ext.A1 document within twelve years, as provided under
Article 65 of the Limitation Act, i.e., till the year 1997. Therefore,
the suit filed on 30.12.1991 is well within the period of 12 years
from 14.6.1985. Moreover, in the written statement no plea of
adverse possession was set up by the defendants. In the absence
of such a plea of adverse possession setup by the defendants,
there is no bar on the plaintiff in seeking recovery of possession
of the plaint schedule property on the strength of Ext.A1 title
even after twelve years from the date of execution/knowledge of
Ext.A4 document by the 1st defendant in favour of the 2nd
defendant. In that view of the matter, the relief of recovery of
possession sought for on the strength of Ext.A1 title is not barred
by limitation and as such, the trial court cannot be found fault
with in granting the plaintiff recovery of possession of the plaint
schedule property on the strength of title.
48. In Ajudh Raj v. Moti (1991 (3) SCC 136) the Apex
Court held that, if the order has been passed without jurisdiction,
the same can be ignored as a nullity, i.e., non est in the eye of
the law and it is not necessary to set it aside; and such a suit will
be governed by Article 65 of the Limitation Act.
49. In State of Maharashtra v. Pravin Jethalal
Kamdar (dead) by Lrs. (2000 (3) SCC 460), following the
principle laid down by the Constitution Bench in Maharao Sahib
Shri Bhim Singhji v. Union of India (1981 (1) SCC 166) the Apex
Court held that, when an order/deed is without jurisdiction and a
nullity, it was not necessary to seek a declaration about the
invalidity of the said order/deed. The fact of the plaintiff having
sought such a declaration is of no consequence. When possession
has been taken by the defendants pursuant to void documents,
Article 65 of the Limitation Act will apply and the limitation to file
the suit would be twelve years. When these documents are null
and void, ignoring them a suit for possession simpliciter could be
filed and in the course of the suit it could be contended that these
documents are nullity.
50. In Premsingh v. Birbal (2006 (5) SCC 353) the
Apex Court held that, when a document is void ab initio, a decree
for setting aside the same would not be necessary as the same is
non est in the eye of law, as it would be a nullity.
51. A suit which is essentially a suit for recovery of
possession based on title would be governed by Article 65 of the
Limitation Act and the mere fact that a declaration of title was
also sought for would not bring the said suit within Article 58 or
Article 113 of the Limitation Act so as to attract the period of
limitation of three years. Therefore, a suit in which declaratory
relief as well as recovery of possession are sought for on the
basis that that impugned document is void ab initio, can only be
viewed as a suit predominantly for recovery of possession,
attracting Article 65 of the Limitation Act.
52. In Abraham K.J. v. Mariamma Itty (2016 (3) KHC
718) a Division Bench of this Court held that, when the
predominant nature of the suit is one for recovery of possession
of property on the strength of title and declaration is only
subservient to the main prayer, which is claimed only to dispel
the cloud cast on the plaintiffs' title, Article 58 of the Limitation
Act has no application and Article 65 of the said Act applies.
53. Applying the principle laid down in the decisions
referred to supra to the facts and circumstances of the instant
case, it can only be concluded that, the predominant nature of
the suit is one for recovery of possession of the plaint schedule
property on the strength of Ext.A1 title and the prayer for
declaration is only subservient to the main prayer for recovery of
possession, attracting Article 65 of the Limitation Act.
54. The declaratory relief sought for, i.e., a declaration
that the plaintiff is the owner having exclusive right, title and
interest over the plaint schedule property by virtue of Ext.A1
document and that, the 2nd defendant has not acquired any right,
title or interest over that property by virtue of Ext.A4 document,
is only subservient to the main prayer of recovery of possession
on the strength of Ext.A1 title, which is claimed only to dispel the
cloud cast on the plaintiffs' title over the plaint schedule property.
As such Article 65 of the Limitation Act applies and not Article 58.
The fact of the plaintiff having sought for such a declaration is of
no consequence. When the document is null and void, ignoring
the same a suit for possession simpliciter could be filed and in the
course of the suit it could be contended that the said document is
a nullity.
55. In Ext.A4 document dated 14.6.1985 executed by the
1st defendant in favour of the 2nd defendant it has been admitted
that the plaintiff is in possession of the plaint schedule property
till the execution of that document, i.e., till 14.6.1985. As per the
recitals of Ext.A4, the 1st defendant, as an agent of the plaintiff,
put the 2nd defendant in possession of the plaint schedule
property on 14.6.1985. Though the plaintiff cancelled Ext.A2
power of attorney by executing Ext.A3 cancellation deed dated
28.9.1985, the plaintiff could not produce any documents to
prove his possession of the plaint schedule property after 1985.
For seeking the relief of injunction, the plaintiff has to prove
possession over the plaint schedule property as on the date of
suit. In order to prove such possession, the plaintiff has to prove
that he was exercising acts of dominion over the plaint schedule
property as on that date, i.e., as on 30.12.1991. The trial court,
after analysing the oral evidence of Pws.1 and 2, arrived at a
finding that the plaintiff did not get back possession of the plaint
schedule property from the second defendant after 1985. Since
the plaintiff was not successful in proving possession of the plaint
schedule property as on the date of suit, the trial court has
rightly rejected the relief of injunction sought for.
56. Pending suit, the 2nd defendant died on 24.1.1993. The
specific case of the 1st defendant was that, during the lifetime of
the 2nd defendant she had executed a will bequeathing her right
over the plaint schedule property in favour of the 1st defendant.
Since the 1st defendant claimed right over the plaint schedule
property as a legatee under a will executed by the 2nd defendant,
the plaintiff contended that other legal heir of the 2nd defendant
(the addl. 2nd appellant herein) need not be impleaded as a party
to the suit. The plaintiff as PW1 has deposed that, this Court by
the order in A.S.No.295/1996 has recorded the 1st defendant as
the legal heir of the deceased 2nd defendant. Further, there is no
material to show that the addl. 2nd appellant ever challenged the
aforesaid will executed by the 2nd defendant in favour of the 1st
defendant. As such, the trial court cannot be found fault with in
rejecting the contention raised as to non-impleadment of other
legal heirs of the deceased 2nd defendant.
57. As per Para.8 of the plaint, the cause of action for the
suit arose on 25.8.1991 when the plaintiff came to know about
Ext.A4 document executed by the 1st defendant in favour of the
2nd defendant and on 27.12.1991 when the plaintiff was sought to
be obstructed by the defendants in taking usufructs and
continues therefrom. As we have already noticed, in the written
statement no plea of adverse possession was set up by the
defendants. In the absence of such a plea, there is no bar on the
plaintiff in seeking recovery of possession of the plaint schedule
property on the strength of Ext.A1 title, even after twelve years
from the date of execution/knowledge of Ext.A4 document by the
1st defendant in favour of the 2nd defendant. After amendment,
the relief for recovery of possession is sought for on the strength
of Ext.A1 title. The cause of action stated in the plaint is the date
of knowledge of Ext.A4 document and also the obstruction caused
by the defendants on 27.12.1991. When the cause of action for
the relief of recovery of possession is not different from the cause
of action for declaratory relief and injunction sought for in the
original plaint, no amendment of the cause of action stated in the
plaint is required.
58. The plaint before its amendment by the order dated
22.9.2007 in I.A.No.91/2007 contained two reliefs; relief (a) for
declaration that Ext.A4 document is void ab initio and relief (b)
for injunction. In the plaint, the declaratory relief was valued at
12,000/-, as provided under Section 25(a) of the Kerala Court
Fees and Suit Valuation Act, 1959 and the relief for injunction at
16,000/-, as provided under Section 27(c) of the said Act.
Therefore, both the reliefs were independently valued and
separate court-fees paid. After the amendment, two reliefs were
added; relief (aa) for recovery of possession of the plaint
schedule property on the basis of Ext.A1 title, if for any reason it
is found that defendants are in possession, and relief (bb) for
declaration of title by virtue of Ext.A1 title. In the amended
plaint, reliefs (aa) and (bb) were neither valued nor any court-
fees paid. The valuation of the appeal and the cross-objection is
also in respect of reliefs (a) and (b) only.
59. Section 149 of the Code of Civil Procedure, 1908 deals
with the power of the court to make up deficiency of court-fees.
As per Section 149, where the whole or any part of any fee
prescribed for any document by the law for the time being in
force relating to court-fees has not been paid, the court may, in
its discretion, at any stage, allow the person, by whom such fee
is payable, to pay the whole or part, as the case may be, of such
court-fees; and upon such payment the document, in respect of
which such fee is payable, shall have the same force and effect as
if such fee had been paid in the first instance.
60. In Nawab John A. v. V.N. Subramaniyam (2012
(7) SCC 738) the Apex Court held that, from the language of
Section 149 of the Code of Civil Procedure it follows that when a
plaint is presented to a court without the payment of appropriate
court-fees payable thereon, undoubtedly the court has the
authority to call upon the plaintiff to make payment of the
necessary court-fees. Such an authority of the court can be
exercised at any stage of the suit. Therefore, any amount of
lapse of time does not fetter the authority of the court to direct
the payment of such deficit court-fees. As a logical corollary,
even the plaintiff cannot be said to be barred from paying the
deficit court-fees because of the lapse of time.
61. Section 6 of the Kerala Court Fees and Suits Valuation
Act, 1959, deals with multifarious suits. As per sub-section (1) of
Section 6, in any suit in which separate and distinct reliefs are
sought based on the same cause of action, the plaint shall be
chargeable with a fee on the aggregate value of the reliefs. Going
by the proviso to sub-section (1) of Section 6, if the relief is
sought only as ancillary to the main relief, the plaint shall be
charged only on the value of the main relief.
62. Section 12 of the Kerala Court Fees and Suit Valuation
Act deals with decisions as to proper fee in any court other than
the High Court. As per sub-section (1) of Section 12, in every suit
instituted in any court, other than the High Court, the court shall
before ordering the plaint to be registered, decide on the
materials and allegations contained in the plaint and on the
materials contained in the statement, if any, filed under Section
10, the proper court-fees payable thereon, the decision being
however subject to review, further review and correction in the
manner specified in sub-sections (2) to (5) of Section 12.
63. Sub-section (4) of Section 12 empowers the appellate
court to consider either on its own motion or on the application of
any of the parties, the correctness of any order of the court
below as to proper court fee payable on the plaint. Going by
clause (a) to sub-section (4) of Section 12, whenever a case
comes up before a court of appeal, it shall be lawful for the court,
either of its own motion or on the application of any of the
parties, to consider the correctness of any order passed by the
lower court affecting the fee payable on the plaint or in any other
proceedings in the lower court and determine the proper fee
payable thereon. Clause (b) to sub-section (4) of Section 12
provides that, if a court of appeal decides that the fee paid in the
lower court is not sufficient, the court shall require the party
liable to pay the deficit fee within such time as may be fixed by
it. Clause (c) to sub-section (4) of Section 12 provides further
that, if the deficit fee is not paid within the time fixed and the
default is in respect of a relief which has been dismissed by the
lower court and which the appellant seeks in appeal, the appeal
shall be dismissed, but if the default is in respect of a relief which
has been decreed by the lower court, the deficit court-fees shall
be recoverable as if it were an arrear of land revenue.
64. In Paramu v. Balan (2001 (3) KLT 803) a learned
Judge of this Court examined the question as regards the power
of the appellate court to give direction with respect to the
payment of proper court-fees. After referring to sub-section (4)
of Section 12 of the Kerala Court Fees and Suit Valuation Act it
was held that, the appellate court has ample power to direct
payment of deficit court-fees as is done by the lower appellate
court.
65. In P.P.S. Pillai v. Catholic Syrian Bank (2000 (3)
KLT 629) a Division Bench of this Court held that, sub-section
(4) of Section 12 of the Kerala Court Fees and Suit Valuation Act
confers jurisdiction on the appellate court to consider either of its
own motion or on the application of any of the parties the
correctness of the order passed by the trial court affecting the fee
payable on the plaint. If the court of appeal decides that the fee
paid in the lower court was not sufficient, the appellate court
shall require the parties liable to pay the deficit court-fees, within
a time as may be fixed by it. The further provision is that, if the
deficit fee is not paid within the time fixed and the default is in
respect of a relief which has been dismissed by the lower court,
the appeal shall be dismissed. The principle laid down in P.P.S.
Pillai's case (supra) has been reiterated by another Division
Bench of this Court in Peter Cherian v. Abraham (2007 (4)
SCC 680).
66. In the instant case, in the amended plaint the plaintiff
sought for relief (aa) for recovery of possession of the plaint
schedule property on the basis of Ext.A1 title, if for any reason it
is found that defendants are in possession, and relief (bb) for
declaration of title by virtue of Ext.A1 document. However, reliefs
(aa) and (bb) were neither valued nor any court-fees paid. The
valuation of this appeal and cross-objection is also in respect of
reliefs (a) and (b) only. Therefore, the valuation of the plaint in
O.S.No.23/1992, the memorandum of appeal in
R.F.A.No.140/2010 and the memorandum of Cross Objection
No.79/2010 require to be amended by valuing reliefs (aa) and
(bb) on the market value of the plaint schedule property, as
shown in the plaint, and paying court-fees for the said reliefs as
provided under Section 25(a) of the Kerala Court Fees and Suit
Valuation Act, 1959.
67. Accordingly, the appellant is directed to file application
for amending the valuation of the memorandum of appeal in
R.F.A.No.140/2010 and the plaintiff/cross objector is directed to
file applications for amending the valuation of the plaint in
O.S.No.23/1992 and the memorandum of Cross Objection
No.79/2010, within one month from the date of receipt of a
certified copy of this judgment and remit the deficit court-fees
along with the said applications, failing which the consequences
as provided under clause (c) of sub-section (4) of Section 12 of
the Kerala Court Fees and Suit Valuation Act, 1959 would follow.
In the result, the appeal and cross objection fail and are
accordingly dismissed. Parties to bear their respective costs.
Sd/-
P.R. RAMACHANDRA MENON,
JUDGE
Sd/-
ANIL K. NARENDRAN,
JUDGE
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