IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 RSA.NO. 262 OF 2010() -------------------------------- AS.60/2007 OF SUB COURT, KASARAGOD OS.25/2006 OF PRL.MUNSIFF, KASARAGOD .................... APPELLANT - APPELLANT - DEFENDANT: --------------------------------------------------------- VARIJA,AGED 50 YEARS,W/O.CHENNAYYA POOJARY,RESIDING AT MUNDIYATHADUKKA, MUGA VILLAGE, MUGU POST,KASARAGOD TALUK,KASARAGOD DISTRICT. BY ADV. SRI.T.MADHU RESPONDENT(S): RESPONDENT/PLAINTIFF ------------------------------------------------------------ K.VANISREE,AGED 31 YEARS,W/O.S.SATHEESH, KUKKAILA HOUSE,MAIRE VILLAGE,MAIRE POST, KASARAGOD TALUK,KASARAGOD DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ================================= R.S.A. NO.262 of 2010 ================================= Dated this the 25th day of March, 2010 J U D G M E N T Respondent, claiming to be the absolute owner of plaint A and B schedule properties and alleging that appellant trespassed into a portion of plaint A schedule property sought recovery of possession of that part of plaint A schedule (plaint B schedule) on the strength of her title. Appellant resisted the suit contending that respondent has neither title nor possession of the suit properties, she trespassed into the Government land 17 years back and set up residence there, title if any of the respondent is lost by adverse possession and limitation and that at any rate she is entitled to the right of kudikidappu right. So far as claim of kudikidappu is concerned learned Munsiff found that the issue need not be referred to the Land Tribunal as no such question genuinely arose for a decision. That order has been confirmed by this Court in C.R.P. No.785 of 2006. Learned Munsiff found title of the suit properties in favour of respondent, that appellant is a trespasser of plaint B R.S.A. No. 262 of 2010 -: 2 :- schedule and allowed recovery of possession of plaint B schedule. That has been confirmed by the first appellate court. Hence this Second appeal urging by way of substantial question of law whether finding of the courts below that respondent has title over the property is perverse not being supported by any evidence. It is contended by learned counsel for the appellant that finding of the courts below cannot be sustained since there is no evidence to show that assignor of respondent had title over the suit properties. 2. It is not disputed that plaint A schedule property belonged to the late Koraga who got it as per proceedings in D.R. No.2086 of 1960 of Tahsildar, Kasargod. According to the respondent Koragra died as bachelor and thereon suit properties devolved on his brother, Angu. On the death of Angu, properties devolved on his wife, Madaru and children, Kukka, Choma, Laksmi and Chandravathi. They assigned plaint A schedule property to the respondent as per assignment deed dated 25.2.2005. Appellant contended that B schedule is not part of plaint A schedule and that though plaint A schedule property belonged to Koraga, the assignors (Madaru and her R.S.A. No. 262 of 2010 -: 3 :- children) of respondent acquired no right over it to be conveyed to the respondent. According to the appellant, Angu was not a legal heir of Koraga. 3. Exhibit A1 is the assignment deed in favour of the respondent. It has come in evidence that appellant had filed O.S. No.357 of 2004 against one Ravi (one of the executants of Ext.A1 and son of Angu). Angu has given evidence as P.W1 as to derivation of title. In O.S. No.357 of 2004 appellant claimed title by adverse possession against Ravi, son of Angu. Exhibit A8 is the copy of deposition of appellant in O.S. No.357 of 2004 where she stated that she does not know to whom the suit property belonged, she constructed a house in the property and that it belonged to the Government. Courts below were impressed by the evidence that Angu inherited the suit property on the death of his brother, Koraga and on the death of Angu it devolved on the executants of Ext.A1 (Madaru, wife of Angu and their children) and thus respondent acquired title over the suit properties. 4. Once title over plaint B schedule property is established then the defence which the appellant could take R.S.A. No. 262 of 2010 -: 4 :- up is adverse possession and limitation. That plea has not been established. In O.S.No.357 of 2004 appellant raised a similar plea of adverse possession but she lost it. Exhibits A2 and A3 are copies of judgment and decree in O.S. No.357 of 2004. That has become final and hence appellant cannot contend that she has title by adverse possession and limitation. Having gone through the judgments under challenge and hearing counsel I am satisfied that no substantial question of law is involved. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv