IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 2ND FEBRUARY 2009 / 13TH MAGHA 1930 RSA.No. 78 of 2009() -------------------- AS.124/2005 of ADDL.SUB COURT, IRINJALAKUDA OS.350/2001 of MUNSIFF COURT, CHALAKUDY .................... APPELLANT ----------------------------- VILASINI, W/O.VILAYIL SUNDARAN, PARIYARAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK. BY ADV. SRI.K.S.BHARATHAN RESPONDENT(S): --------------- 1. KALYANI, W/O. CHITTIYATH VIJAYAN, NAYARANGADI DESOM, KODASSERRY VILLAGE, MUKUNDAPURAM TALUK ,REPRESENTED BY LEGAL HEIRS. 2. KARTHYAYANI , W/O. THAYYIL PADMANABHAN VALLANCHIRA DESOM, AALUR VILLAGE, MUKUNDAPURAM TALUK, (DIED) REPRESENTED BY ADDL.RESPORNDENTS 3 TO 9. 3. SANTHA,D/O.THAYYIL PADMANABHAN AND LATE KRATHYAYANI, VALLANCHIRA DESOM, AALUR VILLAGE, MUKUNDAPURAM TALUK, REPRESENTED BY BROTHER VIJAYAN. 4. VIJAYAN, S/O. THAYYIL PADMANABHAN AND LATE KARTHYAYANI, VALLANCHIRA DESOM, AALUR VILLAGE, MUKUNDAPURAM TALUK. 5. BABU. DO..DO... 2 6. SAJEEVAN DO..DO... 7. RAJAN DO..DO.... 8. VALSA, DO....DO.... 9. GIRIJA DO...DO.... 10. MINI, D/O.DECEASED ORIGINAL FIRST APPELLANT KALYANI, NAYARANGADI DESOM KODASSERRY DESOM, MUKUNDAPURAM TALUK. 11. SINDHU, -DO- 12. REMA, -DO- 13. SURABHI, -DO- 14. AMMINI, POTTAKKAL RAVUTTY, PARYARAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK. 15. AMMINI, D/O. MONATHOTTATHIL KUTTAPPAN, PARYARAM VILLAGE AND DESOM, MUKUNDAPURAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 02/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.78 of 2009 = = = = = = = = = = = = = = Dated this the 2 nd day of February, 2009 JUDGMENT The 1st defendant in O.S.No.350 of 2001 on the file of the Munsiff's Court, Chalakudi is the appellant in this second appeal. The said suit instituted by the predecessor-in-interest of respondent Nos.1 to 13 herein was one for fixation of boundary of the plaint schedule property and for a mandatory injunction to remove the shed put up therein and in the alternative for recovery of possession of the plaint schedule property admeasuring 9½ cents comprised in Survey No.452/5 of Pariyaram Village in Mukundapuram Taluk. 2. The trial court dismissed the suit. But on appeal preferred by the plaintiffs as A.S.No.124 of 2005 before the Additional Sub Court Irinjalakuda, the lower appellate court reversed the decree passed by the trial court and decreed the suit for fixation of boundary and for mandatory injunction. Hence this second appeal. R.S.A.No.78 of 2009 2 3. The following are the questions of law formulated in the memorandum of second appeal:- (a) Whether in the facts and circumstances of this particular case and the pleadings and evidence on record, did not the lower appellate court completely fail to discharge its function as a court of first appeal as mandated by Section 96 of the Code of Civil Procedure? (b) When a party sets up a plea of adverse possession, did not the lower appellate court err in relying on the original title deed of the other party alone to negative the claim of adverse possession? (c) When it has come out on evidence that there is no boundary or any visible sign demarcating the properties of the plaintiffs and defendant, did not the lower appellate court err in relying on Ext.A4 photocopy of the tax receipt alone to find that the plaintiffs are in possession? (d) In the absence of any other indicia of possession, is it not wrong to rely on a tax receipt alone to find possession? 4. The learned counsel appearing for the appellant/1st defendant made the following submissions before me in support of the appeal:- Eventhough both the plaint schedule property admeasuring 9½ cents and the southern property of the 1st defendant admeasuring 47½ cents both comprised in Survey No.452/5 of R.S.A.No.78 of 2009 3 Pariyaram village were sold to the plaintiffs as well as to the 1st defendant on the same day namely 20.8.82 as per Ext.A1 release deed and Ext.B1 sale deed respectively, going by the registration number of Ext.B1 it is anterior in point of time. Moreover, Ext.B1 specifically recites that the property covered by Ext.B1 namely 47½ cents has been put in possession of the defendant under an oral sale of 1.1.1969. Thus, right from 1.1.69 onwards the defendant has been in possession of the entire property. As against this Ext.A1 release deed does not recite any specific act of handing over of possession nor does it recite any anterior possession of the plaint schedule property with the plaintiff. It is in evidence that there is no boundary demarcating the plaint schedule property from the southern property covered by Ext.B1 sale deed. The appellant has specifically pleaded that right from 27.11.85 the date of death of Velai, the father of the plaintiffs the defendant has been in adverse possession of the plaint schedule property. The suit was filed only in the year 2001. Even assuming that the 1st defendant has been in possession of the plaint schedule property without realising whether it is covered by Ext.B1 sale deed, his possession will nevertheless be R.S.A.No.78 of 2009 4 adverse as was held in Raman v. S. Devadasa Maller and others 1991(1) KLJ 377. The lower appellate court was, therefore, not justified in reversing the decree passed by the trial court. 5. I am afraid that I cannot agree with the above submissions. There is no dispute that both the plaint schedule property as well as Ext.B1 property are lying contiguous and comprised in the very same survey number namely Survey No.452/5 of Pariyaram Village. Going by Ext.C1(a) plan prepared with survey assistance, the plaint schedule property is lying towards the northern extremity of the property comprised in Survey No.452/5 of Pariyaram village. The total extent of the said sub division number is 57 cents of which the property covered by Ext.A1 release deed has been identified as 8.30 cents and the property covered by Ext.B1 sale deed has been identified as 41.55 cents. The remaining area is taken in by a road as well as in the possession of strangers. It is true that Ext.B1 sale deed recites that the 1st defendant vendee thereunder has been in possession of the property under an oral sale dated 01.01.1969. That recital will only indicate that the property covered by R.S.A.No.78 of 2009 5 Ext.B1 sale deed has been in the possession of the 1st defendant from 1.1.1969 onwards. It cannot mean that the adjacent property on the north it which is the plaint schedule property is also in his possession. It was on the very same date of Ext.B1 that the very same assignors executed Ext.A1 release deed of the plaint schedule property admeasuring 9½ cents to the plaintiff. The very fact that Ext.A1 recites that the executants are in possession of balance extent after alienating the other portion of the property and that they are conveying all their rights over the property to the plaintiff under Ext.A1 will indicate that the possession of the plaint schedule property was not handed over to 1st defendant under Ext.B1. Therefore, there is every reason to assume that the excecutants under Ext.A1 were in possession of the plaint schedule property as recited in Ext.A1 and that it was this property which was assigned to the plaintiff. 6. The suit being one under the new Limitation Act, 1963, the title of the plaintiff could be lost only if the 1st defendant was able to satisfactorily plead and prove adverse possession. The classic requirements of adverse possession are nec vi, nec clam and nec precario. Moreover, a plea of adverse possession R.S.A.No.78 of 2009 6 involves an admission of the title of the opposite party. The lower appellate court has held that the 1st defendant has not been able to prove his contention that title of the plaintiff has been lost by adverse possession and limitation. The said finding is clearly supportable by the recent decision of the Apex Court in P.T Munichikkanna Reddy v. Revamma (2007(6)SCC 59). 7. The finding of the lower appellate court that the plaintiff is in possession of the plaint A Schedule property which is now found to be lesser in extent namely 8.30 cents shown as plot A in Ext.C1(a) plan is a pure finding of fact based on a re-appraisal of the oral and documentary evidence in the case. The finding that the shed put up in plot A is only 4 to 5 years of old is based on the assessment made by the Advocate Commissioner. If so, it reinforces the contention of the plaintiff that the title of the plaintiff is not lost by adverse possession and limitation. In the light of the said evidence, the conclusion reached by the lower appellate court cannot be said to be illegal or unsustainable. The decree for fixation of boundary of plot A in Ext.C1(a) plan cannot be said to be erroneous. No question of law, much less any substantial question of law arises for consideration in this second R.S.A.No.78 of 2009 7 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 2 nd day of February, 2009. V. RAMKUMAR, JUDGE sj