IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 R.S. A. No. 483 of 2008() --------------------- AS.119/2004 of ADDL.DISTRICT & SESSIONS JUDGE (ADCHOC) FAST TRACK COURT -II, PATHANAMTHITTA OS.442/2000 of M.C.,PATHANAMTHITTA .................... APPELLANT/DEFENDANT: JAMES, S/O.THOMAS, POOVANNUMOOTTIL, MYLAPRA MURI, MYLAPRA VILLAGE, KOZHENCHERRY TALUK. BY ADV. SRI.LIJU.V.STEPHEN RESPONDENT/PLAINTIFF: P.T.MATHAI, S/O.THOMAS, POOVANNUMOOTTIL, MYLAPRA MURI, MYLAPRA VILLAGE, KOZHENCHERRY TALUK, REPRESENTED BY POWER OF ATTORNEY HOLDER, BABY, S/O.KURIAN, NOORANAKUZHIYIL, PRAKKANAM MURI, CHENNEERKARA VILLAGE, KOZHENCHERRY TALUK. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * R.S.A. NO. 483 of 2008 * * * * * * * * * * * * * * * * * * Dated, 15th January, 2009 JUDGMENT The sole defendant in O.S. 442 of 2000 is the sole appellant in this Second Appeal. The said suit instituted by the respondent / plaintiff was one for declaration of his title and possession over the plaint schedule item Nos. 1 and 3 and for fixation of boundary and for a consequential prohibitory injunction. 2. The plaintiff is the younger brother of the appellant/defendant. The defendant is the owner of plaint schedule item No. 2 and 4. As per Exts. A2 to A5 documents ranging between 1972 and 1999 the plaintiff obtained title over plaint schedule items 1 and 3 . It is admitted that the plaintiff went abroad to Canada in the year 1971 and he did not turned up for 32 years. 3. The suit was filed in year 2000 seeking the above reliefs. The suit was resisted by the appellant/defendant contending inter alia that he was in exclusive possession of the plaint schedule items 1 and 3 belonging to the plaintiff and hostile to the interest of the plaintiff. and that the title, if any, of the plaintiff over plaint schedule items 1 and 3 was lost by adverse possession and limitation. 4. On the side of the plaintiff, his power-of-attorney was R.S.A. NO. 483 of 2008 -:2:- examined as P.W.1 and Exts.A1 to 6 were marked. On the side of the defendant/appellant he examined himself as DW1 and also examined 9 other witnesses as DW2 to 10 and got marked Exts. B1 to B10. Two Advocate Commissioners deputed by the trial court submitted their reports and plan which have been marked as Exts. C1 series , C2 series and C3 series. 5. The learned Munsiff, after trial, as per judgment and decree dated 28-2-2004 decreed the suit after rejecting the defence set up by the appellant. On appeal preferred by the appellant as A.S. No. 119 of 2004 before the District Court, Pathanamthitta, the learned Addl. District Judge as per judgment and decree dated 15-1-2007 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence, this Second Appeal. 6. The following are the questions of law formulated in the memorandum of Second Appeal:- i) Whether the Court can decree a suit for declaration of title and possession after the expiry of period of limitation as contemplated under Sec. 27 of the Limitation Act ? ii) Was the Court below justified in allowing the plaintiff to fix the boundary as per the commissioner's report, and thereby ignoring the basic title deed by which the plaintiff and defendant derived title to their respective plaint schedule properties ? 7. I heard the learned counsel appearing for the appellants R.S.A. NO. 483 of 2008 -:3:- who re-iterated the contentions of the appellant to submit that the evidence adduced by the appellant will unequivocally show that the appellant has been in possession of plaint schedule items 1 and 3 to the exclusion of the plaintiff for more than 30 years, that the respondent/plaintiff had not entrusted the defendant to look after the property during his absence could have very well found out that the appellant/defendant has been in open and uninterrupted possession of his property for more than 30 years whereby his title over the property stood extinguished under Sec. 27 of the Limitation Act, 1963. The learned counsel also relied on the decisions reported in 2004 (1) KLT SN Page 46 and 2005 (2) KLT SN Page 51 (SC) to contend for the position that the finding recording the adverse possession involved a question of law justifying the interference by this Court under Sec. 100 C.P.C. and that were the adverse possessor has has been in possession for more than the statutory period, the court has no other alternative except to hold that the title of the real owner is lost. 8. I am afraid that I cannot agree with the above submissions. The lower appellate court has, while re-appreciating the oral and documentary evidence considered the exhibits produced by the appellant and has held that most of them do not pertain to the plaint schedule items 1 and 3 which are situated close to the properties of the appellant namely, plaint schedule items 2 and 4. The appellant is none other than the elder brother of R.S.A. NO. 483 of 2008 -:4:- the respondent/plaintiff. If during the absence of the plaintiff, the elder brother has been exercising acts of possession over the plaint schedule item Nos. 1 and 3 belonging to the plaintiff, there cannot be a presumption of any hostile animus in the conduct of his brother. The evidence adduced by the plaintiff through his power- of -attorney holder shows that after acquiring the title over plaint schedule items 1 and 3, mutation over those items has also been effected in his favour and he had paid tax even on the eve of the filing of the suit. Even assuming that the appellant/defendant had paid tax in respect of plaint schedule items 1 and 3 that can only be to the account of the plaintiff in whose favour the mutation had been effected in the revenue registers. The appellant/elder brother paying tax, if any, to the account to his younger brother who was in Canada cannot be characterised as an act of adverse possession. The classic requirements of adverse possession are nec vi nec clam and nec precario which are conspicuously absent in this case. The Possession, however long, cannot necessarily be adverse unless the possessor has brought it to the knowledge of the real owner (who is abroad) that he has been in possession with a hostile animus towards his own younger brother. The findings recorded by the courts below, apart from being pure findings of fact are fully in accordance with the decision of the apex Court in P.T. Munichikkanna Reddy and Others v. Revamma and Others - 2007 (6) SCC 59. No question of R.S.A. NO. 483 of 2008 -:5:- law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this Second Appeal which is accordingly, dismissed in limine. Dated this the 15 th January 2009. V. RAMKUMAR, (JUDGE) ani.