IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 12TH APRIL 2011 / 22ND CHAITHRA 1933 RSA.No. 456 of 2009() -------------------------- AS.43/2008 of ADDL. DISTRICT COURT-II, MAVELIKKARA OS.404/1997 of MUNSIFF COURT,HARIPAD .................... APPELLANTS/APPELLANTS/DEFENDANTS: ------------------------------------------------- 1. MURALI, S/O.SREEDHARANA, SASTHAPARAMBIL, VATTACHAL MURI,ARATTUPUZHA VILLAGE. * 2. SREEDHARAN, S/O.AYYAPPAN, SASTHAPARAMBIL, VATTACHAL MURI, ARATTUPUZHA VILLAGE.(DECEASED) * ADDL. A3 TO A5 IMPLEADED 3. BHAMINI, W/O.ARAVINDAKSHAN, THATHAMANGALAM, ARATTUPUZHA P.O.,ARATTUPUZHA VILLAGE,ALAPPUZHA. 4. SARASAMMA, AGED 58 YEARS,W/O.PURUSHAN, KADUUTHARAYIL, KADAYIL, KANDALLOOR P.O., KANDALLOOR VILLAGE, KAYAMKULAM. 5. BHAURA, AGED 48 YEARS, W/O.SURENDRAN, MAZHUPPEL PUTHIYAVILA,PATTOLI MARKET P.O.,KANDALLOOR * ADDL. A3 TO A5 ARE IMPLEADED AS PER ORDER DATED 12/04/2011 IN I.A. NO.956/2011. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP, SMT.SURYA SASI SRI.V.SUNIL KUMAR RESPONDENT(S): RESPONDENTS/PLAINTIFFS: ------------------------------------------------------ 1. YESODHARAN, S/O.VELAYUDHAN,SASTHAMPARAMBIL VEEDU, CHIRACKADAVAM MURI, KAYAMKULAM. 2. VIJAYAN, S/O.VELAYUDHAN,SASTHAMPARAMBIL VEEDU, CHRACKADAVAM MURI, KAYAMKULAM. R1 BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN R2 BY ADV. SRI.S.ANANTHAKRISHNAN THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/04/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 456 OF 2009 ............................................ DATED THIS THE 12th DAY OF APRIL, 2011 JUDGMENT Defendants in O.S.404 of 1997 on the file of Munsiff Court, Harippad are the appellants. Plaintiffs are the respondents. Suit was originally instituted for permanent prohibitory injunction as against the first appellant alone. Subsequently, plaint was amended seeking recovery of possession of plaint schedule 3(a) and 3(b) properties alleging that they are part of the plaint schedule properties and was trespassed upon by the appellants subsequent to the institution of the suit. The respondent would contend that item No.1 and 2 of the plaint schedule properties belong to the first respondent as per Ext.A1 partition deed No.3094/1969 and sale deed 1841/1997 and item No.3 belongs to second respondent as per the patta granted in L.A.No.1016/1970 and the properties have been in possession and enjoyment of the respondents and appellants have no manner of right or title to the same. Suit was instituted on the allegation that appellants attempted to trespass into the RSA 456/2009 2 property. Plaint was subsequently amended on the allegation that a portion of the plaint schedule properties was reduced in the possession of appellants after trespass claiming recovery of possession of the appellants. Appellants resisted the suit but did not specifically deny the title of respondents in the written statement and only pleaded that respondents have to prove the same. Appellants are setting up title to item No.3(a) of the plaint schedule property based on adverse possession. Though there is no specific pleading on item No.3(b) of the plaint schedule property, except alleging that it forms part of the property obtained by them under L.A.No.1282/1969. It was also contended that in any case if it is found that respondents have title to plaint 3(a) and 3(b) schedule properties, it is lost by adverse possession and limitation. 2. Learned Munsiff, on the evidence of Pws 1 to 5, Dws 1 to 3, Exts.A1 to A10, B1 to B8, C1 to C4(c), granted a decree in favour of the respondent holding that respondents have title to item Nos. 3(a) and 3(b) as demarcated by the Commissioner in Ext.C4(c) plan as they form part of their property. Appellants were restrained by a permanent prohibitory injunction from RSA 456/2009 3 trespassing into the plaint schedule properties. Appellants were also directed to surrender possession of item No.3(a) and 3(b) properties. Appellants challenged the judgment before Additional District Court, Mavelikkara in A.S.43 of 2008. Learned Additional District Judge, on reappreciation of the evidence, confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. “Aren't the courts below justified in arriving at a conclusion that as per Ext.A7 Resurvey Plan, the plaintiffs were conferred with title to the excess land conveyed by Ext.A2 without there being any other independent evidence ? 4. Learned counsel appearing for appellants and respondents were heard. 5. The argument of learned counsel appearing for appellant is that the courts below did not properly appreciate the evidence and failed to note that plaint schedule properties were not properly identified. The learned counsel argued that though RSA 456/2009 4 courts below granted a decree based on Ext.C4(c) plan, the Commissioner did not identify the plaint schedule properties as described in the plaint or as shown in Exts.A1 and A2. It was argued that though Ext.A1 shows that properties described by old survey number, old survey plan was not made available to the Commissioner, and the property was identified with regard to the re-survey plan and re-survey plan is not correct and appellants could not make proper representation at the time when re-survey plan was finalised and in such circumstances, based on Ext.A7 re-survey plan, courts below should not have upheld Ext.C4(c) plan and therefore the decree is not sustainable. 6. The learned counsel appearing for respondents pointed out that in the original written statement, there was no denial of the title of respondents and though subsequently an additional written statement was filed, the only contention raised was that item 3(b) forms part of the property covered under L.A.No.1282 of 1967 and as rightly found by the courts below, Ext.B2 and B8 establish that it is not in respect of the disputed property and in such circumstances, the appellants cannot raise any claim over the properties identified by the Commissioner in Ext.C4(c) plan RSA 456/2009 5 as the property obtained by respondents under Exts.A1 and A2. Learned counsel argued that the only contention raised was that the property was not identified with respect to the old survey plan and when it is admitted that re-survey was finalised, without challenging the resurvey plan, appellants are not entitled to contend that property as identified by the Commissioner is not correct and therefore there is no merit in the appeal. 7. The title set up by respondents is based on Ext.A1 partition deed and Ext.A2 sale deed executed by Nalini to whom item No.4 of Ext.A1 property was alloted. As rightly pointed out by learned counsel appearing for respondents, the only dispute is with regard to item No.2 of the plaint schedule property, which is item No.4 of Ext.A1 property. Though Ext.A2 shows that the property assigned by Nalini is 19 cents and excess land, Ext.A1 partition deed shows that Nalini was alloted only 19 cents and no excess land. But item No.2 of the plaint schedule property is only 19 cents and does not include any excess land. Therefore, whether Nalini could assign excess land under Ext.A2 is of no significance, as far as this case is concerned, as item No.2 is only in respect of 19 cents which was alloted to Nalini under Ext.A1 RSA 456/2009 6 and assigned to first respondent under Ext.A2. Appellants are not disputing the title of respondents to the property covered under Ext.A2 and the only case is that the property as identified by the Commissioner takes in a portion of the property belonging to the appellants under Ext.B8 survey plan covered under Ext.B2 patta. Ext.B2 and B8 establish that they are not in respect of the disputed property, as rightly found by the courts below. The only question for consideration is whether item 3(a) and 3(b) forms part of the property obtained by respondents under Ext.A2. 8. The Commissioner has identified those properties as part of the property belonging to the respondents, as the plaint schedule properties. Though learned counsel appearing for appelalnts argued that the Commissioner has not properly identified the properties, it is seen that after Ext.C4 report with C4(c) plan were submitted, the case was posted for objection to the Commissioner's report and an objection was filed by the appellants. Even in that objection, there is no case that the property covered under Ext.A2 was not properly identified, though it is contended that the property was not identified with reference to old survey plan. Appellants did not produce the old RSA 456/2009 7 survey plan before the trial court or first appellate court. As rightly found by the courts below, when the re-survey is finalised and the Commissioner has demarcated the properties with reference to the re-survey plan and found that plaint schedule properties as demarcated by the Commissioner in Ext.C4(c) plan includes plots RQBU viz item Nos. 3(a) and plot A1 B1 HGF viz, item 3(b) of the plaint schedule properties. Courts below rightly found that respondents have title to the said properties. If respondents have title to the properties, unless the title is barred by adverse possession, respondents are definitely entitled to recover possession of the same and are also entitled to get the decree for injunction in respect of the remaining properties against committing trespass. Though a plea of adverse possession was raised in respect of item 3(a), there is no such plea of adverse possession in respect of item 3(b). Even as against item 3(a), unless the appellants admit title of the respondents, and plead and prove that they have been in possession of the property, with the knowledge that the properties belong to the respondents and they have been in possession of that property adverse to the true owners, the plea RSA 456/2009 8 of adverse possession will not lie. 9. On the evidence, courts below rightly found that respondents have title to item Nos.3(a) and 3(b) of the plaint schedule properties and appellants have not perfected their title by adverse possession. In such circumstances, I find no merit in the appeal. It is dismissed. No costs. M.SASIDHARAN NAMBIAR, JUDGE lgk