IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 17TH JANUARY 2011 / 27TH POUSHA 1932 RSA.No. 353 of 2009() --------------------- AS.55/2006 of SUB COURT, KASARAGOD OS.131/2005 of PRL.MUNSIFF, KASARAGOD .................... APPELLANTS/APPELLANTS/PLAINAITTS ---------------------------------------------------- 1. MUKAMBIKA, WIDOM OF KALANDOOR KRISHNA - BHAT, KALANDOOR, BAYAR VILLAGE, KASARGODE TALUK, P.O. CHIPPAR. 2. ANURADHA PARVATHI, W/O.SRIRAMA BHAT, POSADKA, MAIRE VILLAGE, KASARGODE TALUK, P.O. ARIYAPADDY. 3. VENKATARAVI, S/O.LATE KALANDOOR KRISHNA BHAT,KALANDOOR, BAYAR VILLAGE, KASARGODE TALUK, P.O. CHIPPAR, BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. RATNAVATHI,W/O.GANAPATHY BHAT, PONNENGALA HOUSE, BAYER VILLAGE,KASARGODE TALU, P.O.CHIPPAR. 2. NARAYANA PRASAD S/O.GANAPATHY BHAT, PONNENGALA HOUSE, BAYAR VILLAGE, KASARGODE TALUK P.O. CHIPPAR. 3. SURESH KUMAR, S/O. GANAPATHY BHAT, PONNENGALA HOUSE, BAYAR VILLAGE KASARGODE TALUK, P.O. CHIPPAR. ADV. SRI.K.JAYAKUMAR FOR R1 & 3 SRI.P.B.KRISHNAN FOR R1 & 3 SMT.GEETHA P.MENON FOR R1 & 3 SRI.P.M.NEELAKANDAN FOR R1 & 3 SRI.K.G.GOURI SANKAR RAI FOR R2 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 17/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J -------------------------------------- R.S.A No.353 OF 2009 -------------------------------- Dated this the 17th day of January 2011 JUDGMENT Plaintiffs in O.S No.131/2005 are the appellants. Their suit for declaration and consequential injunction was negatived concurrently by both the courts below. Feeling aggrieved, they have preferred this Second Appeal. 2. Bereft of the paraphernalia of allegations raised to canvass the reliefs, case of the plaintiffs in a nut shell can be summed up thus. Suit property having an extent of 80 cents, admittedly, was previously Government land. Predecessor of the plaintiffs who came into possession of the property exercising a hostile animus against the Government continued such possession and enjoyment for the statutory period enabling him to prescribe title over the property by adverse possession. It is the further case of the plaintiffs that from 1976 onwards, the Government ceased to have any right over the property. Imputing threat of trespass and interference with their right and possession over the suit property by the defendants the suit was laid by the plaintiffs for a declaration of their title and consequential injunction. Resisting the suit claim, the contesting defendants contended that by virtue R.S.A No.353 OF 2009 - 2 - of the assignment made under the Land Assignment Act, the suit property had been assigned in favour of their predecessor, namely, Ganapathy Bhat in 1973. They also produced the patta and other documents to substantiate their claim of title and possession over the suit property. The trial court and the appellate court, on the materials produced, found that the plaintiffs are not entitled to any of the reliefs canvassed for in the suit since the materials, prima facie, disclosed that the defendants are in lawful possession of the property by virtue of the assignment of the land made in favour of their predecessor. Impeaching the correctness of the decision so rendered concurrently by the two courts, the plaintiffs have filed this appeal. 3. I heard the counsel on both sides. Learned counsel for the appellants assailed the findings entered by the two courts contending that there was total misappreciation of the facts and materials produced in the case and it has resulted in miscarriage of justice. Claim raised by the plaintiffs over the suit property was not appreciated in accordance with the legal principles and also taking note of the reports and plan prepared by an advocate commissioner deputed by the court, which indicated without any doubt that the plaintiffs are in possession and enjoyment of the R.S.A No.353 OF 2009 - 3 - property, according to the counsel. Per contra, the counsel appearing for the respondents contended that no question of law leave alone any substantial question of law is involved in the appeal and the findings on fact entered by the courts below based on the materials tendered in the case do not suffer from any infirmity leave alone any illegality. 4. Perusing the judgments rendered by both the courts below and taking note of the case set up by the plaintiffs for the declaratory decree for upholding the title claimed by them over the suit property setting forth a case that they have prescribed title by adverse possession over the land which admittedly was a Government land, the primary question to be looked into is whether they have pleaded and proved the case so canvassed as to having prescribed title by adverse possession against the Government. Not only that, there was no specific pleading on that claim in their plaint, the judgment of the trial court would also indicate that when examined PW1, one among the plaintiffs, had also stated that the possession with their father commenced only in 1962. The materials tendered in the case disclose that the predecessor of the defendants 1 to 3, Ganapathy Bhat, had obtained assignment of the land from the Government in 1973 R.S.A No.353 OF 2009 - 4 - and, later, he was issued Ext.B1 patta over the land. There is no challenge against the assignment proceedings or the patta issued in favour of Ganapathy Bhat by the plaintiffs in the present suit. The only documents produced by them in the case, as could be seen from the exhibits marked in the case, related to some litigations with neighbouring property owners and a certificate issued from the panchayat. When the claim was for declaration for title over immovable property as having obtained by adverse possession against the Government, in the nature of the case, the presence of the Government to claim such a relief was absolutely necessary, but, it was not jade a party. Further there was no challenge against Ext.B1 patta issued in favour of Ganapathy Bhat, the predecessor of defendants 1 to 3. Even assuming that the plaintiffs have got possession over the property in such circumstances they are not entitled to the relief for declaration of their title over the suit property. No interference with the dismissal passed by the courts below in the given facts of the case emerge for consideration, and the appeal is dismissed. Sd/- S.S.SATHEESACHANDRAN JUDGE vdv //True Copy// P.A to Judge