IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 15TH JUNE 2011 / 25TH JYAISHTA 1933 RSA.No. 454 of 2011() --------------------- AS.31/2001 of SUB COURT,KOTTARAKKARA OS.427/1994 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANTS : -------------------- 1. S.RADHAMANY, D/O. KALLIYANI SUMATHY, RAJENDRAN VILASOM, PULLAMEL MURI PAVITHRESWARAM VILLAGE. 2. S.GIRIJA, D/O. KALLIYANI SUMATHY, SMITHA BHAVAN, KIZHAKKE MARANADU PAVITHRESWARAM VILLAGE. 3. N.RAJENDRAN, S/O. KALLIYANI SUMATHY, THADAVILAMELATHIL VEEDU, KIZHAKKE MARANADU MURI, PAVITHRESWARAM VILLAGE. 4. B.SURENDRAN, S/O.KALLIYANI SUMATHY, THADUVILAMELATHIL VEEDU, KIZHAKKE MARANADU MURI, PAVITHRESWARAM VILLAGE. 5. SURESH KUMAR, (HUSBAND OF LATE B.MONY), BIJUVILASOM, MALAYIL, MARANADU (PO). 6. BIJU KUMAR (S/O.SURESH KUMAR) BIJUVILASOM, MARANADU (PO). 7. BAIJU, (S/O.SURESH KUMAR) BIJUVILASOM, MALAYIL, MARANADU (PO). 8. BAJI KUMAR (S/O.SURESH KUMAR) BIJU VILASOM, MALAYIL, MARANADU (PO). (APPELLANTS 5 TO 8 ARE THE LEGAL REPRESENTATIVES OF DECEASED ADDITIONAL 3RD PLAINTIFF). BY ADV. SRI.T.K.MARTHANDAN UNNITHAN SRI.V.JAYAKUMAR RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, KOLLAM – 691001. 2. THE TAHSILDAR, TALUK OFFICE, KOTTARAKKARA KOLLAM DISTRICT – 691 506. 3. THE VILLAGE OFFICER, VILLAGE OFFICE, NEDUVATHOOR, KOTTARAKKARA TALUK, KOLLAM DISTRICT – 691 506. BY GP SMT ANNIE PAUL. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.454 OF 2011 ............................................ DATED THIS THE 15th DAY OF JUNE, 2011 JUDGMENT Plaintiffs in O.S.427 of 1994 on the file of Munsiff Court, Kottarakkara are the appellants. Defendants are the respondents. Appellants instituted the suit for declaration of title and possession over plaint B schedule property and for permanent prohibitory injunction restraining respondents from trespassing into the plaint B schedule property. Plaint A schedule property admittedly belongs to the appellants and there is no dispute on that aspect. Plaint B schedule property is two acres in Survey No.590/54 (resurvey No.267/13) of Neduvathoor Village of Kottarakkara Taluk. Appellants contended that there was an idol of Lord Vishnu adjacent to the house in the plaint A schedule property and they have been in possession of plaint A schedule property as well as the idol of Lord Vishnu and the plaint B schedule property lies to the east of plaint A schedule property and it is actually an excess extent of plaint A schedule property and they have been in continuous enjoyment and possession of RSA 454/2011 2 the said property and even if it is a Government land, Government has lost right and title to the property because of adverse possession as the family of the first appellant have been in possession of the property for more than 72 years openly and without interruption and nobody questioned the right. Therefore appellants have title to plaint B schedule property also and respondents have no right over the same. It was also alleged that the idol of Lord Vishnu was forcibly taken by the revenue authorities illegally, though no relief was sought for in the suit in respect of the idol. Respondents resisted the suit contending that plaint B schedule property is a sarkar tharisu property and appellants or their predecessors have not been in possession of the property and as per resolution No.24 dated 19.6.1989, Neduvathoor panchayat requested the property for social forestry cultivation of cattle feed and by order of the Revenue Board dated 5.8.1989, proceedings were initiated and land was handed over to the panchayat. But as the panchayat has no sufficient funds, it was decided to shift the Kottarakkara T.B Hospital to the property and appellants have no right whatsoever over plaint B schedule property and if any idol is found in the sarkar tharisu, it RSA 454/2011 3 is to be reported to the concerned authorities and the place is not a public place of worship and Government has registered a case under the Land Conservancy Act and as the sarkar tharisu was transferred to Neduvathoor panchayat, appellants are not entitled to the decree sought for. 2. Learned Munsiff, on the evidence of Pws 1 to 3, DW1, Exts.A1 to A5, C1 to C5 dismissed the suit holding that plaint B schedule property is a Government puramboke land and appellants have not established their title by adverse possession and therefore they are not entitled to the decree sought for. Appellants challenged the judgment before Sub Court, Kottarakkara in A.S.31 of 2001. Learned Sub Judge, on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that neither the trial court nor the first appellate court appreciated the evidence in the proper perspective. Learned counsel would argue that reports submitted by the Commissioner establishes that plaint B RSA 454/2011 4 schedule property has been in the possession of the appellants and their family for last more than 70 years and the evidence of Pws 2 and 3 corroborate the evidence of PW1 that appellants have been in exclusive possession of the property as if the property belongs to them and Government have not taken any steps to recover the plaint schedule property within the requisite period and appellants have therefore perfected their title to the plaint schedule property. Learned counsel argued that evidence of DW1 establishes that the idol was not taken from the plaint B schedule property but from plaint A schedule property and the Government has no right to keep the idol taken from plaint A schedule property, in the Taluk office and courts below wrongly found that idol was taken from plaint B schedule property even though evidence of DW1 shows that it was not taken from plaint B schedule property but from plaint A schedule property. Learned counsel would argue that there is no reason to disbelieve the evidence of Pws 1 to 3 and appreciation of the evidence was perverse and in such circumstances, the findings of the courts below that appellants have not perfected their title by adverse possession is not sustainable. RSA 454/2011 5 5. Relying on the decision of the Honourable Supreme Court in P.Chandrasekharan and others V. V.S.Kanakarajan and others (AIR 2007(3) SC 2306), the learned counsel argued that when appreciation of evidence was perverse and the relevant facts were ignored and the legal principles were not properly applied, it is a substantial question of law and hence substantial questions of law are to be formulated and appeal is to be admitted. Relying on the decision of the Honourable Supreme Court in Kshitish Chandra bose V. Commissioner of Ranchi (AIR 1981 SC 707), the learned counsel argued that it was declared by the Honourable Supreme Court that if a person asserts a hostile title even to a tank, as claimed by the Municipality belonged to it and despite the hostile assertion of title no steps were taken by the owner to evict the trespasser, and so his title by prescription would be complete after the expiry of 30 years and on the evidence it could only be found that as appellant and their predecessors have been in possession of the plaint B schedule property for more than seventy years, the title of the State has been lost and therefore dismissal of the suit is erroneous. RSA 454/2011 6 6. The very case of the appellants is that they have title to plaint A schedule property and plaint B schedule property is an excess land of plaint A schedule property. They have no case that the title deed of the plaint A schedule property takes in the plaint B schedule property also. The title to plaint B schedule property is set up based on adverse possession. As rightly found by the courts below, it is up to appellants to establish that they have been in possession of the plaint schedule property adverse to the true owner for the requisite period. 7. Learned Munsiff and learned Sub Judge, on appreciation of evidence of Pws 1 to 3 found that their evidence is not credible and reliable. Learned Sub Judge also found that the evidence of PW1 establishes that appellants have filed an application for assignment of plaint B schedule property from the Government and by filing an application, appellants have admitted the title of the Government and therefore their plea for adverse possession will not lie. The argument of the learned counsel is that the application was filed subsequent to the filing of the suit only as an alternative prayer, as it was found out that it is a Government land. In order to claim title by adverse possession, appellants RSA 454/2011 7 have definitely to admit the title of the Government to plaint B schedule property before a period prior to the requisite period. If the case of the appellants is that it is only after the measurement of the property by the Commissioner it was realised that it is a Government land, they cannot contend that they have been in possession of the plaint schedule property adverse to the Government earlier to that day. If their case is that because of adverse possession they have already perfected the title and thereby Government lost title to the property, they could not have filed application for assignment of the property from the Government, as in that case Government has no right at all. The very fact that appellants have filed application for assignment, as admitted by PW1, establishes that even if they are in possession of the property, it is in derogation of the title of the Government. If that be so, appellants cannot succeed in the plea of adverse possession. 8. Moreover, the trial court and appellate court on appreciation of the evidence of Pws 1 to 3 found that their evidence is not credible and hence based on their evidence, appellants cannot establish that they have perfected their title by RSA 454/2011 8 adverse possession. In such circumstances, on the facts, I do not find any substantial question of law involved in the appeal. Learned counsel then submitted that the trial court has wrongly found that the idol was taken from plaint B schedule property as against the evidence of DW1 and for that reason, it was found that appellants have no right over the idol. First of all, ownership of the idol is not the subject matter of the suit. There was no prayer for declaration of title to the idol or for return of the idol by the State. In such circumstances, there was no necessity to find out the title or ownership of the idol in the suit. Hence even if there is any observation by the courts below on the ownership of the idol, it will not affect the right of the appellant, if any, to the idol. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk