Possessing Land Beyond Entitlement Is Unauthorized Possession – SC Holds Possession Can Only Be Protected To Extent Of Entitlement
A two-judge Bench of Justice MR Shah and Justice BV Nagarathna has held that possessing land beyond entitlement is unauthorized possession.
The Apex Court in this context observed –
"…any possession beyond 2 acres and 35 cents can be said to be unauthorized possession. As observed hereinabove, the plaintiffs can protect their possession by putting up the boundary wall/fence to the extent of 2 acres and 35 cents only"'
A dispute arose with respect to putting up the boundaries in respect of Schedule B items 1 and 2. The original owner filed a suit before the Court of Munsiff, Neyyattinkara, in which his title to and possession over plaint A schedule land was declared to the extent of 2 acres and 35 cents. Subsequently, the original plaintiffs, in this case, filed another suit for recovery of the buildings situated in plaint A schedule therein. In this suit, a question of kudikidappu was raised, which was referred to the Land Tribunal concerned for adjudication. The Land Tribunal, after taking evidence, entered a finding that the defendants in that suit (defendant Nos. 1 to 3) were entitled to kudikidappu rights. The second suit came to be dismissed.
The plaintiffs filed an appeal against the rejection of their claim in one of the buildings, which was situated in the plaint C schedule. The said appeal came to be allowed. In execution, the person in occupation of the C schedule was evicted. Later, a compromise was arrived at between the parties, and the property now shown in the C schedule was gifted to the son of the defendant in the earlier suit
Thereafter the plaintiffs herein filed the present suit with a prayer to put up the boundary in respect of the plaint B schedule Items 1 and 2. It was the case on behalf of the Plaintiffs that they have no objection to allotting 10 cents each to the defendant Nos. 1 and 3 in kudikidappu right and the rest of the property has to be secured by putting up a boundary wall.
The defendants filed the written statement disputing the description of the plaint schedule properties. They also contended that they are in possession of properties in excess of kudikidappu right and they are legally entitled to possess the same. It was the case on behalf of the defendants that they have perfected their title over a property having more than 10 cents in extent.
The Trial Court dismissed the suit of the Plaintiffs which was confirmed by the First Appellate Court.
Aggrieved, the Plaintiffs preferred a second appeal before the Kerala High Court which was allowed. The High Court held that defendants Nos. 1 to 3 cannot have more than 10 cents of land as kudikidappukars and therefore, plaintiffs are entitled to put up the boundary as per the Commissioner's Report beyond the excess of 10 cents of land.
Aggrieved, Respondent no. 4 approached the Apex Court.
Senior Advocate C.N. Sreekumar appeared for the Appellant and Counsel Jose Abraham appeared for the Respondents-Original Plaintiffs before the Apex Court.
The Apex Court noted that the predecessor-in-title of the plaintiffs, was having the title to and possession over the plaint A schedule land admeasuring 2 acres and 35 cents only. Therefore, to that extent, only the plaintiffs can protect their possession by putting up the boundary wall/fence and not beyond 2 acres and 35 cents. Therefore, the original plaintiffs can put up the boundary wall/fence within 2 acres and 35 cents.
Further, the Bench opined, "They have no right to put up any boundary wall/fence beyond 2 acres and 35 cents. If the plaintiffs are permitted to put up the boundary wall beyond 2 acres and 35 cents, in that case, it would be contrary to the earlier judgment and decree passed in O.S. No. 833 of 1961. Also, if the plaintiffs are permitted to put up the boundary wall/fence beyond 2 acres and 35 cents, in that case, it can be said to be conferring title on them beyond 2 acres and 35 cents contrary to the judgment and decree passed in O.S. No.833 of 1961 in which they were held to be entitled to plaint A schedule land admeasuring 2 acres and 35 cents only."
Accordingly, the Court quashed and set aside the impugned order of the High Court and restored the judgment and decree passed by the First Appellate Court, and allowed the appeal.
Cause Title - Raghavan Sasikumar v. Parameswaran Nadar Sathyananadhan Nadar Kanakottu Padippura Veedu and Ors.