OUSEPH Vs. MARIAMMA

JUDGEMENT

(1.) This Second appeal by the 1st defendant arises out of O.S. 187 of 1114 on the file of the Changanacherry Munsiff's Court which was a suit originally filed for a declaration of the plaintiff's title to and possession of the properties scheduled to the plaint which is a paramba having an extent of 16 cents and for a perpetual injunction restraining the defendants from interfering with the plaintiff's possession. The 1st defendant who is the father of defendants 2 to 6 (of whom the last two were minors) contested on his own behalf as also as guardian of the minors. The main plea was that the plaint property was orally assigned to him by his father in law in the year 1082 in lieu of Stridhanam as also of certain other amounts due to him and that he is in possession under that independent title. After this written statement, the plaint was amended by adding a prayer to the effect that should the defendants be found to be in possession, they may be directed to surrender the property to the plaintiff with mesne profits.

(2.) Plaintiff and the deceased wife of the 1st defendant are the daughters of one Pothen who was examined in the case as plaintiff's 1st witness, their brother being the 4th witness. The plaintiff and her husband were witnesses 2 and 3 on her side.

(3.) Plaintiff claimed title under an Udampadi executed by the father in the year 1105 (Ext. A). Under that Udampadi Pothen granted slices of immovable property to the plaintiff as also to her sister. Plaintiff got the plaint property and her sister the adjacent western property. Mutation was effected, the names of the donees were entered in the revenue registry, and land revenue was and is being paid by them accordingly. The case set up by the defence of an oral sale of the plaint property by Pothen to the 1st defendant was disbelieved by both the Courts below who concurred in the conclusion that the plaint property was conveyed to the plaintiff under Ext. A and that pursuant to it the plaintiff was the owner and was in legal possession. The plaintiff's case was that she permitted her sister and after her death the 1st defendant, to look after the property on her behalf. This accounted for the contact that the sister and her husband the 1st defendant had with the plaint property which is spoken to by witnesses examined for the defence. The 1st defendant when examined stated that the property given to his wife by her father under the Udampadi lies to the west of the plaint property that he is residing in a house in the property given to him orally by Pothen in the year 1082 and that property also lies to the west of the plaint property. The inference is that the property that he says he got in the year 1082 after his marriage with Pothen's daughter in the year 1078 is the identical property which was formally made over to the 1st defendant's wife by Pothen under the Udampadi (Ext. A) in the year 1105. There is a house in it in which the 1st defendant was and is living with his family. Plaintiff was living away from the plaint property but was visiting it occasionally. Her version was accepted by the courts below and there is no reason shown why this court should interfere with the concurrent findings recorded on a question of fact. There is evidence to support it and I, therefore, confirm that conclusion and hold that the plaintiff was given the plaint property under the Udampadi (Ext. A), that she was put in possession pursuant to it and that her sister and the 1st defendant were, with the permission of the plaintiff, looking after the property with the result that their possession was merely permissive. The permissive character of possession can be inferred from the attendant circumstances even without direct evidence. If possession is found to be permissive at the inception, the possessor cannot prescribe or sustain title or any claim adversely to the grantor of the possession. Reference may be made to two Full Bench decisions of the Cochin High Court in XIV Cochin 264 and XXXVIII Cochin 96. In my judgment these decisions are applicable to the facts of the present case and applying them also, I find that whatever possession that the 1st defendant and his wife had, was permissive and as such for and on behalf of the plaintiff. The moment the plaintiff indicates her intention that the permissive possession should cease, the permissive possessor should desist from entering into the property and if he does not do so, his continuance would, thereafter, be wrongful and would render him liable to surrender possession with mesne profits.