J 2014 SCC OnLine Ker 28405 2014 2 KLJ 455 2014 2 KL Pradhanrana Khaitancocom 20231017 124830 1 7

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Page 1 Tuesday, October 17, 2023

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2014 SCC OnLine Ker 28405 : (2014) 2 KLJ 455 : (2014) 2 KLT (SN 50) 34
In the High Court of Kerala

(BEFORE N.K. BALAKRISHNAN, J.)
Pathukutty & Anr.

Versus
Aisakutty & Ors.
S.A. No. 642 of 2000
Decided on March 19, 2014
The Judgment of the Court was delivered by
N.K. BALAKRISHNAN, J.:— The plaintiffs in a suit for partition are the appellants.
The suit was originally filed by the first plaintiff Aleema Umma. It was contended by
the original first plaintiff that the plaint schedule property originally belonged to his
brother Moosa and he assigned the property to the plaintiff. Two suits were filed as
O.S. 277/1977 and O.S. 258/1977 by Aleema Umma against deceased Alathel
Muhammed who is the husband of the first respondent. Muhammed mentioned therein
who was the defendant in those suits filed a suit against the deceased first plaintiff
Aleema Umma as O.S. 339/1977. All those three suits were tried together. The two
suits filed by the first plaintiff Aleema Umma were dismissed holding that the first
plaintiff could not prove her exclusive possession of the property claimed by her.
Similarly, O.S. 339/1977 was also dismissed holding that Muhammed the defendant
therein could not prove his exclusive right over the property.
2. Ext. A3 is the common judgment passed in the earlier three suits, O.S. Nos.
258/77, 277/77 and 339/1977. As stated earlier, the two suits filed by Aleema Umma
Page: 456
mentioned above were dismissed holding that she could not prove exclusive
possession over the suit property. Similarly, the third suit filed by Muhammed
contending that he was in exclusive possession of the property was also dismissed
holding that he could not prove exclusive possession of the property. Aleema Umma
filed two appeals challenging the dismissal of her two suits. Those two appeals were
also dismissed. No appeal was filed by Muhammed as against the judgment and
decree in O.S. 339/1977 and hence, the judgment and decree passed in that suit
became final. Challenging the common judgment passed against the judgment and
decree in O.S. 277/1977 and O.S. 258/197, Second Appeals were filed as S.A.
317/1983 and 330/1983. Ext. A6 is the common judgment passed by this Court in
those two Second Appeals. In Ext. A6 it was observed by this Court:
“The two courts have concurrently found that the plaintiff could not prove her
exclusive possession over the plaint schedule property. The court held that the
building as well as the appurtenant land are in the joint possession of the plaintiff
and defendants. That is a finding of fact reached by the two courts. No substantial
question of law arises in this matter.
5. O.S. No. 339/1977 was only a suit for injunction. Injunction was refused as
the parties were in joint possession. I find no reason to interfere with the judgment
of the lower appellate court and the two appeals are dismissed, without costs”.
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3. During the pendency of the present suit the original plaintiff died. Her assignees
were brought on record as supplemental plaintiffs. It was held by the trial Court that
simply because there was an observation made by this Court in Ext. A6 judgment that
the parties can pursue their remedy for partition, it cannot be said that the plaintiffs
were held to have proved their title to the property. Since no document could be
produced by the plaintiff to show the title of the deceased first plaintiff, the suit was
dismissed. The appellate court concurred with that view. The following substantial
questions of law have been re- framed in this case:—
i) Whether a suit for partition can be dismissed solely on the ground that the
plaintiff has not proved her proprietary title?
ii) Can not partition and separate possession be claimed based on the joint
possessory right exercised by the plaintiff and defendant?
iii) Are not the appellants entitled to get a preliminary decree for partition?
4. The learned counsel for the supplemental plaintiffs/appellants would submit that
the courts below did not advert to the findings and observations made by this Court in
Extr. A3 judgment which was the common judgment passed in the three suits which
were tried earlier. Since the dismissal of the suit, O.S. 339/1977 was not challenged at
all by the plaintiff therein who is the first defendant in the present suit, the first
defendant is estopped from contending that he has absolute or exclusive right over the
property. There can be no doubt that since the dismissal of the suit in O.S. 339/1977
was not challenged it is not open to the first defendant to contend that he has got
absolute or exclusive right over the suit property. But, according to the learned
counsel for the respondent, that will not relieve the plaintiffs of their burden to prove
their title to the property. Simply because an observation was made by this Court that
the parties can pursue their remedy by way of partition that will not confer on them
title to the property and unless the title to the property is proved in the manner
required by law the plaintiffs
Page: 457
are not entitled to a preliminary decree for partition as sought for by them, the
respondents contended.
5. Ext. A3 is the common judgment referred to above. There the case set by
Aleema Umma (the first plaintiff in the two suits O.S. 258/1977 and O.S. 277/1977)
was that the plaint schedule property originally belonged to the plaintiffs brother
deceased Moosa he had ‘pattam’ right over the property; the plaintiff was residing in
the said property and subsequently Moosa assigned the ‘pattom’ right (the lease hold
right) to the plaintiff as per a registered assignment deed dated 20-01-1976. But it
was held in Ext. A3 and in the appeals filed against them that deceased Aleema Umma
the plaintiff in the two suits could not prove that Moosa had any right over the
property and as such the assignment deed will not confer on Aleema Umma any right
over the property based on that assignment deed. In Ext. A3 Aleema Umma
contended that the property was obtained on oral lease by her brother deceased Moosa
from the jenmi on 15th Kanni 1120. That oral lease could not be substantiated by
Aleema Umma. As such, it cannot be said that Aleema Umma had obtained right over
the property on the strength of Ext. A1 assignment deed. The case set up by the first
defendant in that suit was that the suit property was obtained by his father
Cheriyakutty from the Jenmi in the year 1075 (ME). It was found that even the
identity of the property claimed by the first defendant therein was entirely different. It
was also found that the first defendant failed to prove the lease set up by him.
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Therefore, the contention that the suit property was obtained on lease by the father of
the first defendant also fell to the ground. That finding entered in O.S. 339/1977 and
the consequential dismissal of that suit became final. Hence the first defendant therein
is estopped from contending otherwise.
6. The learned Sr. counsel appearing for the respondents would submit that though
the suit (O.S. No. 339/1977) filed by the first defendant Mohammed was dismissed
and was not appealed against that does not mean that the plaintiffs can get a
preliminary decree for partition unless they establish their title to the property.
7. It is a case where both parties could not prove their absolute title to the
property. Both parties could not prove the oral lease set up by them in their respective
suits. Therefore, what remains is only the limited right i.e. possessory right.
8. The suit property admittedly belonged in jenm to Kunnatur Kovilakam. Though
the oral lease set up by the plaintiff and 1st defendant could not be proved, the
findings in Ext. A3 would clearly show that the suit property was in the joint
possession and enjoyment of the first plaintiff and the first defendant. Though the oral
lease set up by the first plaintiff could not be proved that alone is not a reason to non-
suit the appellant since the definite finding in Ext. A3 judgment was that the first
plaintiff (Aleema Umma) and the first defendant (Muhammed) were in joint possession
of the property. That was a finding entered in O.S. No. 339/1977 also. The decree and
judgment in that suit was not appealed against and hence that finding became final.
As such the first defendant cannot contend otherwise.
9. The other question germane for consideration is whether in the light of that
finding regarding joint possession, the deceased first plaintiff could seek partition of
the plaint schedule property.
10. Hence, the present suit was filed by Aleema Umma for partition of the suit
Page: 458
property contending that she and the defendant Muhammed were/are in joint
possession of the property and so she is entitled to half share in the property.
11. In this connection, it is also pointed out that the first defendant in Ext. A3 suit
did not challenge Exts. A5 and A6 series, the receipts for payment of land revenue and
building tax marked therein. There is evidence to show that the deceased first plaintiff
and the deceased first defendant were occupying the very same house and they were
in joint possession of the appurtenant land as well. That would suggest that Aleema
Umma (deceased first plaintiff) and deceased first defendant (Muhammed) were in
joint possession of the property. There is also evidence to show that the first
defendant therein did not challenge the acceptability of Ext. A5 series, the revenue
receipts produced by the first plaintiff herein. Though the trial court expressed a doubt
as to how those receipts can be relied upon to hold that those receipts pertain to the
suit property there was a clear and unambiguous admission made by (the first
defendant who was examined as DW1 therein) that all those receipts produced by the
first plaintiff relate to the plaint schedule property. Therefore, that would clearly
indicate that the first plaintiff could prove her possession over those suit property. The
finding in the earlier suit is that 1st defendant and Aleema Umma were in joint
possession of the property. The finding that the first plaintiff and the first defendant
were in joint possession of the property has become final. Hence, the first defendant
cannot resist the claim for partition simply by saying that the proprietary title could
not be established. Possessory right is available for partition and can be partitioned
unless the parties could prove better title suggesting impartibility of the property. The
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contention that simply because the plaintiffs paid basic tax or building tax in respect
of the property, no right can be claimed by the plaintiffs cannot be accepted in the
factual scenario obtained in this case. Payment of land revenue and building tax was
accepted as acts of possession, though the party cannot claim exclusive right based on
such payment of tax. There was a definite finding in the earlier suit that the first
plaintiff and the first defendant were in joint possession of the property. Therefore,
unless it is established that the first defendant had a better right to totally non-suit
the first plaintiff, the possession of the first defendant over the suit property can only
be treated as joint possession of the suit property along with the first plaintiff. If
viewed in that line, the payment of the land revenue and the building tax by the first
plaintiff cannot be simply brushed aside from consideration; rather it has to be given
due weight especially when no such document could be produced by the first
defendant or other defendants to negative the claim made by the first plaintiff.
12. It could be found that the first plaintiff and the first defendant were residing in
the very same building situated in the suit property at least from 1976 onwards. If
that be so, the first defendant cannot contend that the first plaintiff had absolutely no
right over the property. No explanation whatsoever could be offered on behalf of the
first defendant.
13. It is true that the supplemental plaintiffs could not prove that the deceased
first plaintiff had obtained leasehold right over the suit property. But the observations
and findings rendered by the trial court in Ext. A3 suit would clearly show that the
property was jointly held and possessed by the deceased first defendant and first
plaintiff. Since that finding has become final, the first defendant is estopped from
contending otherwise.
Page: 459
14. It is argued by Sri. Rammohan, the learned counsel appearing for the
appellants that a person having such interest like possession must be allowed to
enforce those rights against all the world except those who have a better title or better
right than himself. Possession is evidence of ownership and is itself the foundation of a
right to possession. It is a good title against all the world except the person who can
show a better title. Here, it is not a case where the appellants trespassed in to the
property and took possession for a short period. The consistent case throughout is that
the appellant was in possession of the property along with the respondent. There is a
definite finding by all the courts including this Court, in the earlier round of litigation,
that Aleema Umma and Muhammed were in joint possession of the property. The
respondent did not even challenge that finding entered against him in his suit by filing
appeal, challenging the dismissal of that suit. He stood by that decision. Therefore, the
respondent cannot be heard to contend that the appellant is not in joint possession of
the property. Both sides could not trace their title. That does not mean that the person
in possession or joint possession should be deprived of his right. It was held by a
Division Bench of this Court in Kuttan Narayanan v. Thomman Mathai — 1966 KLT 1:
“possession by itself is a substantive right recognised by law and has legal
incidents attached to it apart from ownership”.
15. It was also held in the very same decision:
“A person having such interest must be allowed to enforce those rights against
all the world except those who have a better title or better right than himself’.
16. It was observed by Salmond on Jurisprudence, Eleventh Edition, page 345:
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“In English law possession is a good title of right against any one who cannot
show a better. A wrongful possessor has the rights of an owner with respect to all
persons except earlier possessors and except the true owner himself’
17. It is submitted by Sri. Rammohan that even though there has been change in
the approach with regard to the right of possession exercised by a trespasser, so far as
the case on hand is concerned, the appellant did not come into possession by way of
trespass but claiming right under the earlier owners or persons in possession of the
property. That apart, in view of the definite finding entered by the courts in the earlier
round of litigation the respondent cannot contend that the appellant is not in joint
possession of the property. If so, a person having joint possession as held in the
earlier case, should not be deprived of the right to get separate possession equivalent
to his moiety.
18. In primitive Society absolute ownership was the rule. Limited ownership came
into existence in later times. Although the definitions of ownership are more
appropriate to absolute ownership, limited owners are nevertheless regarded as
owners. All co-owners have equal rights and co-ordinate interest in the property. Their
shares may be either fixed or indeterminate. Each co-owner is in theory interested in
every infinitesimal portion of the subject matter and each has the right irrespective of
the quantity of his interest to be in possession of every part and parcel of the property
jointly with others. The trust of co-ownership is co-ordinate interest. If there is no joint
possession of the parties in respect of the entire property, there is no co-ownership.
Applying the test of equal rights of enjoyment and possession of the entire property
the claim for partition made by the deceased first plaintiff to get her share in the
property is well justified. Joint property is the generic name given to any property held
by coowners. Any property held by tenants in common is sometimes called common
Page: 460
property in order to distinguish the same from other forms of joint property. Therefore,
the word ownership or co-ownership does not confine to absolute ownership but also
to limited rights like possessory right as the one which arises for consideration in the
case on hand.
19. Another Division Bench of this Court in Rev. Father K.C. Alexander v. Nair
Service Society Ltd., 1966 KLT 333 it was held:
20. A person in possession, even if he be a trespasser, can on the strength of his
possessory title, get back possession from any person (except the true owner) who
dispossesses him, if he brings a suit within 12 years period.
21. The aforesaid decision was affirmed by the Hon'ble Supreme Court in Nair
Service Society Ltd. v. Ref. Father K.C. Alexander — 1968 KLT 182. Therefore, Sri.
Rammohan, the learned counsel for the appellants would submit that if possession by
itself confers title against all but the true owner, it must follow that his interest;
namely possession, has to be protected. When the other person in joint possession
tries to disturb his possession then certainly his remedy is to sue for partition and
allotment of his share in the possessory title. In such cases, the question whether the
plaintiff has proved proprietary title to the property or not does not assume much
relevance so long as the defendant/respondent does not prove better title. The
defendant was held to be only having joint possession along with the plaintiff. Since
that being the concluded finding in the earlier case, the defendant cannot now contend
that the plaintiff should prove proprietary title so as to enable her to get partition of
the property. If anybody claiming better tittle comes forward, the decree for partition
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passed may not bind such a person who claims better title. But so far as the defendant
is concerned he cannot contend that the plaintiff should prove proprietary title so as to
get a decree for partition. What is sought for is only the partition of the possessory
right and not the proprietary title or ownership of the property. Possession by itself is a
substantive right recognized by law. It has got all the legal incidents attached to it.
22. Possessory title is good title against all though not against the true owner.
Therefore, possessory title is heritable, divisible and transferable. Possessory title is
distinct and different from proprietary title. Hence, the finding entered by the courts
below that since the plaintiff could not prove title to the property, she is not entitled to
get partition of the property is bereft of any merit. The partition was sought in respect
of the possessory right exercised by Aaleema Umma. That will hold good against all,
though it may not hold against the true owner. So long as the defendants are
concerned, their possession was found to be only a joint possession along with the
plaintiff. Going by the findings entered earlier, it was clear that the property was in the
joint possession of Aleema Umma and Muhammed, the defendant. The decisions cited
supra were followed by another Bench of this Court in Philip v. State of Kerala, 1987
(1) KLT 213 and in Krishnankutty Nair v. Subramanian, 1988 (1) KLT 886.
23. It is argued by Sri. Rammohan that person in peaceful possession is entitled to
maintain such possession against all, though not against the true owner. When his
possession is tried to be disturbed then he can certainly sue for necessary reliefs.
Since in this case the other person who tries to disturb his possession is a person in
joint possession, the only remedy available to the plaintiff is to sue for partition and
Page: 461
for getting separate allotment of that portion of the property which the plaintiff will be
entitled to get as her share. Possession is a substantive right which has been
recognized by law. It is trite law that if a person is in settled possession of land,
eventhough without title, he cannot be ejected by another person who has no title. So
far as the case on hand is concerned, it is the proved fact that Aleema Umma, the
original plaintitf and Muhammed the original defendant were in join possession of the
property. Hence, a preliminary decree for partition can certainly be passed in respect
of that possessory right enjoyed by them. The courts below proceeded on the footing
that since the plaintiff has not proved Aleema's proprietary title to the property,
partition cannot be claimed. The courts below proceeded on a wrong premise that the
partition is sought based on title. The claim was purely based on possessory title
based on the joint possession recognized by the courts in the earlier round of
litigation. True, title cannot be conferred by judgment. But the appellants (persons
claiming under Aleema Umma) relied upon Ext. A6 and the prior judgments to show
that Aleema Umma's right of joint possession was recognized by the courts.
24. The principle in In pari delicto potior est conditio possidentis (or defendent is)
means that where both parties are equally at fault, the defendant holds the stronger
ground; the condition of the defendant is more favourable. That principle has no
application to the facts of this case. Here, it is indisputably clear that both parties were
in joint possession of the property and so the defendant cannot steel a march on the
plaintiff. Not only that both of them are not in wrongful possession of the property.
Their possession is lawful. Therefore, the contention that the condition of the possessor
is more favourable also cannot be sustained. The defendant is not in a better position
so as to allow him to retain possession to the exclusion of the appellants because his
possession was only joint possession along with the appellants.
25. It is vehemently argued by the learned counsel appearing for the respondents
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that even if it is accepted that there is a finding of the court in the earlier round of
litigation that the plaintiff and defendant therein were in joint possession of the
property, there is no finding as to the proportion of share they were having in respect
of the property. It was not a case of Aleema Umma and Muhammed claiming right as
the legal heirs of their father. Therefore, the share of Muhammed and Aleema cannot
be 2 : 1.
26. No specific claim has been made by the respondents stating that the share
(share of Mohammed) should be more than one-half. In the absence of any other
specific claim or any legal right projected by the respondents it can only be held that
Aleema Umma and Muhammed were in joint possession of the property having equal
right over the same. If so, a preliminary has to be passed in that line.
27. In the result, this Second Appeal is allowed. A preliminary decree for partition
is passed directing division of the suit property into two equal shares and to allot one
such share to the supplemental plaintiffs claiming under deceased Aleema Umma and
the other share to the defendants claiming under deceased Muhammed. The claim for
equity if any shall be considered in the Final Decree Application.
———
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Page 1 Tuesday, October 17, 2023

In the High Court of Kerala

Pathukutty & Anr.

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