K.V. Kunhammed Kutty vs Avokker and Others

K. Sukumaran, J.—Plaintiff in a suit for recovery of possession on the strength of title is the appellant in the second appeal. The relevant facts, briefly stated, are the following:--The plaintiff purchased under Ext. A1 dated 8-8-1934 kanamkuzhikanam rights over a property which measured forty 6'' koles east-west and 31 north-south. The vendors were defendants Nos. 1 to 3 and Kunhunni Musaliar, father of defendants Nos. 4 to 6''. At the time of the institution of the suit Kunhunni Musaliar was no more. The consideration for the sale was Rs.1,500/-. A sum of Rs.1,094 out of the said consideration was reserved with the plaintiff for discharging the liability under a hypothecation bond No. 453 of 1922 in favour of Raman Somayajippad. The liability was not discharged as undertaken. It necessitated the execution of a fresh mortgage deed Ext. B1 dated 25-3-1935, in which the plaintiff herein and the vendors of Ext. A1 joined as mortgagors. That document took in the property conveyed under Ext. A1 as also other items. The liability under Ext. B1 also was not discharged. That led to the institution of a suit by the assignee of the mortgage, O.S. No. 26 of 1947, of which Ext. A2 dated 8-3-1948 is the judgment. In the light of the beneficent statutory provisions available, the mortgage liability was scaled down and a decree was granted for the amount so scaled down. Execution petition was levied in that suit, E.P. No. 604 of 1961, Ext. A3 being the copy of the execution petition with orders therein. The decree-holder in O.S. No. 26 of 1947 suffered further deduction in the amount due under the decree in view of the provisions of the Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958). The decree-holder could recoup from the plaintiff herein only a sum of Rs.11.51 which had been allowed by way of costs in the trial court and Rs.37 in the appellate courts by a process of adjustment of the above amounts which the plaintiff herein (who was the 7th defendant in that suit) had been granted under the decree. The balance liability under the decree was discharged by the Ist defendant and ultimately a satisfaction was recorded under Ext. B3. According to the plaintiff, only a portion of the property conveyed under Ext. A1 was given possession to by the vendors at the time of the execution of the document. The northern portion which takes in the plaint schedule property was agreed to be delivered only on the discharge of the hypothecation liability In as much as under Ext. B3 that liability had been settled, the plaintiff was entitled to recovery of the plaint schedule property. The demand for surrendering the possession of the property under the notice Ext. A4 was resisted by the reply Ext. A5 dated 22-3-1968. The present suit was thereupon filed.

The defendants resisted the suit contending that there was no agreement as alleged in the plaint. A technical plea that even if there is such an agreement it would be hit by Sections 91 and 92 of the Evidence Act was also urged. It was contended that the suit was barred by limitation. According to the defendants, the plaintiff had not paid any amount towards the decree debt and he was not entitled to recover possession of the property. Value of improvements was also claimed in the event of there being a decree for eviction.

A question whether the plaintiff had title, and subsisting title, over the property was considered by the trial court under issue No. 1. The title was found, on the basis of Ext. A1; but according to the court the title was lost in view of the expiry of a twelve-year period from the date of Ext. A1, namely, 8-8-1934. The question whether there was an agreement as pleaded by the plaintiff was decided in favour of the plaintiff. Reliance was placed on the admission of the defendants in Ext. A2 suit wherein the present defendants had contended that there was an agreement to give actual possession of the property only after the plaintiff herein (the 7th defendant in that suit) had discharged the debt. The court noted that the allegation in the plaint about the oral agreement had riot been specifically denied in the written statement of any of the defendants. The plea based on the bar under Sections 91 and 92 of the Evidence Act, however, appealed to the trial court. It was in that view that that court held that the plaintiff had no subsisting title. According to that court, the plaintiff had not discharged any portion of the liability arising under Ext. A2 decree and consequently the suit was liable to be dismissed on that ground too. The finding that the plaintiff had initial title over the property under Ext. A1 was not challenged in appeal. The argument mainly centred round the oral agreement being hit by Sections 91 and 92 of the Evidence Act and on the contention that the plaintiff had not discharged the liability undertaken by him under Ext. A1. On the latter question the finding of the trial court was reversed by the appellate court. It adverted to the fact that the contention of the plaintiff herein who was the 7th defendant in O.S. No. 26 of 1947 about the mortgage liability having been extinguished had been ultimately upheld by the court. That court observed:

Therefore, it is not a case where the plaintiff had failed to discharge the mortgage liability and for that reason the defendants were forced to pay the mortgage amount to the mortgagee-decree holder. It is only by reason of the provisions of the beneficial enactments the mortgage liability became discharged and therefore the plaintiff cannot be treated as a defaulter.

An alternative finding that at least a portion of the liability had been borne by the plaintiff herein, in the light of the set-off effected by the decree-holder was also made by that court. On the interpretation of Sections 91 and 92 of the Evidence Act, the appellate court also agreed with the trial court. In that view of the matter, observing that the suit for recovery of possession had to be brought within 12 years from the date of Ext. A1, the suit was found to be belated and barred by limitation, 12 years from the date of Ext. A1 having expired long prior to the institution of the suit. The entitlement for value of improvements in the event of eviction, found by the trial court, was upheld by the appellate court.

The main controversy in the present case relates to the question whether the suit is barred by limitation. The effect of Sections 91 and 92 of the Evidence Act arises only as one facet of that larger question.

This suit is instituted subsequent to the coming into force of the Limitation Act, 1963. Counsel for the appellant pointed out, and rightly according to me, that the relevant article applicable in a suit based on title, is Article 65 of the Schedule to the Limitation Act. In the present case, the plaintiff had initially title to the property under Ext. A1. Under Article 65, the period of limitation for a suit for possession of immovable property based on title is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. Counsel for the respondents relying on the decision in Ram Prasad Janna and another v. Lakhi Narain Pradhan, ILR 12 Calcutta 197, contended that if the vendor is in possession at and from the time of sale, the possession of the vendor must be adverse and a suit instituted 12 years beyond the date of the sale would be barred. He relied also on the decision in Anand Coomari v. Ali Jamin, ILR 11 Calcutta 229. That weighty contention would have merited consideration, if other factors had not intervened. The present case is not a simple one as was the case in ILR 11 Calcutta 229 supra. The facts narrated above demonstrate how there have been other intervening factors. It is not enough that the vendor is in possession even after the sale. His possession must be adverse to the real owner. This requirement of the possession being adverse has been given due emphasis in judicial decisions. The necessary animus to possess a property adverse to the real owner, would be non-existent if the possession is permissive. Similar would be the case, if the existence of other factors, extinguishes the requisite animus to possess adversely. If, therefore, there had been an agreement as pleaded in the plaint, the possession of the vendor would not be adverse. In a way, the lower appellate court also has adverted to the significance of such a plea when it observed:

It is to get over this bar of limitation that the plaintiff has now put forward a case that the parties have subsequently entered into an agreement whereby possession of the portion of the property has been allowed to be retained by the defendants until the mortgage liability is discharged.

When the agreement is found to be established, that would have ordinarily been sufficient to repel the plea of adverse possession set up by the defence. The courts below have, however, chosen to ignore the plea of an agreement of postponement of possession, on the ground that such a plea violated the provisions of Sections 91 and 92 of the Evidence Act. The question, therefore, would be whether that assumption made by the courts below is correct. If it is found that the plaintiffs plea is not obnoxious to the statutory scheme sketched by Sections 91 and 92, the plaintiff should succeed in the suit. This necessitates a consideration of the interpretation of those sections.

Counsel on either side had placed before me a large number of decisions explaining the scope and ambit of the aforesaid provisions. One of the earliest of the Indian decisions found in the course of the scrutiny of large number of decisions in Hukum Chand v. Hiralal, ILR 3 Bombay 159. That decision and the one in Lala Himmat Sahay Singh v. Lhenhellen, ILR 11 Calcutta 486, have been referred to in Nabin Chandra Chakravarti and others v. Sm. Shurm Mala Ghose and others, AIR 1932 Calcutta 25. The Court there held:

The consideration mentioned in a document is not one of the terms of the document, but it is the recital of a fact which can be contradicted or varied under proviso(i) to that section.

(emphasis supplied)

(The reference is to Section 92 of the Act). It is, therefore, necessary to bear in mind the significance of the distinction between a term in a document and a recital of the fact therein. The section has received interpretation by the Privy Council although in different contexts, in the decisions in Balkishen Das & Others v. W. F. Legge, ILR 22 Allahabad 149 (P.C.), Hanif-UN-Nissa v. Fait-UN-Nissa, ILR 33 Allahabad 340 (P.C.), Petherpermal Chetty v. Muniandy Servai, ILR 35 Calcutta 551, AIR 1938 198 (Privy Council) and Veeraswami v. Narayya, AIR 1949 P.C. 32. Some of the other Indian decisions on the point are AIR 1949 32 (Privy Council) , Kisan Ram Marwari v, Smt. Godawari Debt, AIR 1940 Patna 379, and Mohafazal Rahim v. Babulal, AIR 1949 Nagpur 113. The Privy Council in AIR 1938 P.C. 198 supra held that there was no objection to prove a collateral agreement suspending the coming into force of the contract; and in AIR 1949 32 (Privy Council) supra it was held:

To add a stipulation which is quite unconnected with the terms of sale is not.... an addition of the kind struck at by the section.

(emphasis supplied)

The recitals in a document referring to a fact, therefore, stands on a footing entirely different from a term of sale. Thus, statements in a conveyance regarding the location of the property or the date of the execution of the deed, have been construed as only recitals of a fact, in respect of which proof is admissible to establish'' a mistake about the same. The admission made by a donor in a deed of gift about the possession of the donor, and the donee having been put in possession, is not irrebutable or conclusive on the question of delivery of possession, though the admission would be binding on the parties in the absence of independent proof to the contrary (see AIR 1938 198 (Privy Council) and other decisions). Judged in the light of the principles gatherable from the aforesaid decisions, I do not find that the recitals in Ext. A1 by which the vendors have agreed that the purchaser could possess the property paying the dues of the jenmi and with the liberty to deal with the property, would amount to a term. The trial court observed:

The document recites clearly that possession was handedover...

(emphasis supplied)

The wording of the document does not justify that assertion. Even assuming that there is. such a recital, as stated above, it is not subject to the rigour of the section. The lower appellate court also erred in observing that Ext. A1 contained a statement in relation to "the question when the property is to pass." The document does not yield to such an interpretation. The statement does not ''answer the description of an express covenant found in a conveyance of property. I am, therefore, of the view that the courts below have erred in holding that the plaintiff was precluded from proving the agreement set up in the plaint, an agreement virtually admitted by the evidence and found to be established by both the courts below.

In the light of the aforesaid conclusion, the character of a possession of the vendors cannot be considered to be adverse. It cannot, therefore, be posited that the defendants had perfected title by adverse possession. The basic finding regarding the adverse character of the possession of the defendants having been found to be unsustainable, the suit has to be held to be maintainable and not barred by limitation. This conclusion would entail the setting aside of the judgments and decrees of the courts below to the extent they have dismissed the suit as barred by limitation. The courts below have concurred to hold that in the event of the suit being decreed the defendants are entitled to value of improvements. That finding is not liable to be interfered in second appeal. The courts below were correct in holding that even on the basis of the plaintiff''s plea, the defendants were entitled to remain in possession of the property till such time as the plaintiff discharged the liability under Ext. B1. They were entitled to effect improvements in the property; in the above circumstances the plaintiff is obligated to pay for such improvements when he seeks eviction of the property. The value of improvements would be determined in execution. In the result, in reversal of the judgments and decree of the courts below the second appeal is allowed; the appellant-plaintiff is granted a decree as prayed for. The defendants will be entitled to value of improvements effected in the property, which will be determined in execution. I direct the parties to bear their costs in the second appeal.