IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 12TH NOVEMBER 2007 / 21ST KARTHIKA 1929 RSA.No. 39 of 2004() -------------------- AS.79/2003 of SUB COURT,KOTTARAKKARA OS.61/1985 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANTS/APPELLANTS A.S. 79/1993 & DEFENDANTS 1 & 2 IN O.S.61/85: ---------------------------------------------------- 1. MATHUNNI KOCHUMMAN, AGED 73, KANDATHIL VEEDU, INJAKKATTU MURI, MYLOM VILLAGE. 2. MATHAI PODIYAN, AGED 68, KOCHUVILA PUTHEN VEEDU, POOVATHUR, KIZHAKKUM MURI, KULAKKADA VILLAGE. BY ADV. SRI.VARGHESE C.KURIAKOSE SRI.PRAVEEN K. JOY RESPONDENTS: RESPDONDENTS 2 AND 3 AND ADDL.RESPONDENTS IN A.S. 79/1993 AND PLAINTIFF NO.2 AND ADDL.3RD RESPONDENT IN O.S.NO.61/85: ----------------------------------------------- 1. VRGHESE GEORGEKUTTY, AGED 63 YEARS, S/O.LATE VARGHESE, KANISSERIL VEEDU, INJAKKADU MURI, MYLAM VILLAGE. 2. M.RAJU, AGED 35, KOCHUVILATHUKKATHIL VEEDU, INJAKKDU MURI, MULAM VILLAGE. 3. JOYKUTTY, KANISSERIL VEEDU, I NJAKKADU MURI, MYLAM VILLAGE. BY ADV. SRI.K.K.JOHN for R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12/11/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ...2/- ....2..... R.S.A.NO.39/2004 J U D G M E N T No representation for appellant. Appeal is dismissed, in view of order in CMA 29/04. 12/11/2007 Sd/-M.Sasidharan Nambiar,Judge /True Copy/ P.A.to Judge HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 39 of 2004 ---------------------------------------- Dated this the 22nd day of July, 2009 JUDGMENT The Second Appeal is directed against the judgment and decree in A.S. No. 79/1993 on the file of the Subcourt, Kottarakkara which arises from the decree and judgment in O.S. No. 61/1985 on the file of the Munsiff Court, Kottarakkara. The suit was filed for declaration of title, recovery of possession and for consequential injunction. The trial court decreed the suit declaring title of the plaintiffs over the plaint schedule property as indicated in Ext.C7 plan, and allowing the plaintiffs to recover possession of plot Nos. 1 and 2 from the defendants. The trial court also granted injunction to the plaintiffs restraining the defendants from making further encroachments into other portions of the plaint schedule property other than plaint items 1 and 2. The lower appellate court confirmed the trial court's decree and judgment. Hence the second Appeal. Defendants 1 and 2 in the suit are the appellants herein. The parties hereinafter referred to as plaintiffs and defendants as arrayed in the suit. 2. According to the plaintiffs, Sri.Varghese the father of the 2nd plaintiff and husband of the deceased 1st plaintiff purchased 10 cents of property from K.B.Pandarathil on 25.06.1962 and he sold 3 Cents out of it to Postal and Telegraph Department and the balance 7 cents (plaint R.S.A. No. 39 of 2004 -2- schedule property) was settled in favour of 1st plaintiff Aleyamma Varghese (deceased). The defendants attempted to trespass into the plaint schedule property and during the pendency of the suit, they trespassed and a small portion was reduced to their possession. So the plaintiffs amended the suit incorporating the prayer for declaration and recovery of the trespassed areas. The plaintiffs sued for recovery of possession of extent of 1.210 Cents of land which is described as item No.1 property from the 1st defendant and .938 cents of land which is described as plot No. 2 from the 3rd defendant who is the transferee of the 2nd defendant . 3. The defendants 1 and 2 in their joint written statement contended that their property lies on the eastern side and the total extent is 50 cents. The northern 25 cents is owned by the 1st defendant and the southern 25 Cents is owned by the 3rd defendant by transfer from 2nd defendant. The defendants also denied the title of the plaintiffs and alternatively claimed that if any portion of the plaint schedule property is in the ownership of the plaintiffs that is lost by adverse possession and limitation. 4. The court below recorded the oral and documentary evidence. The evidence consists of PWs 1, 2 and 3,DWs 1 to 4 , Exts. A1 to A7 , B1 to B6 and C1 to C10 5. The question regarding the title of the plaintiff over the plaint R.S.A. No. 39 of 2004 -3- schedule property was considered in detail in paragraphs 7 to 15 of the trial court judgment. The trial court held that the plaintiffs have absolute title under Exts. A1 and A2 over the plaint schedule property and after Ext.A3 sale deed they continued in possession of the balance southern 7 cents described in the original plaint. Ext.A3 sale deed is executed by the said Varghese in respect of of 3 cents of land which was given to the P & T Department. The trial court further observed that the technical plea of 1st defendant denying title and possession of plaintiffs on the date of suit cannot be acceptable. 6. The question whether the defendants have perfected title by adverse possession over the portions, for which recovery was sought by the plaintiffs, was also considered in detail. The trial court on facts held that the defendants have committed trespass subsequent to the suit and that is strengthened by the inclusion of an excess area in the sale deed taken by the 1st defendant in his name on 6.2.1985 The trial court also found that the plaint schedule property comprised in different survey numbers and the defendants' properties are lying separately and the plaintiff's property lying adjacent to the defendants' properties. In the said circumstances the learned Munsiff held that the defendants cannot defeat the claim of the plaintiffs for recovery of possession of trespassed area on the ground of adverse possession also in as much as that adverse possession can be established only if possession could become adverse R.S.A. No. 39 of 2004 -4- for a period of 12 years. The trial court concluded that there is no question of adverse possession in this case for the reason that the evidence shows that plaintiffs lost possession only after the suit and the they are entitled to recover the trespassed areas in plaint Survey from defendants 1 and 3. 7. The trespassed areas are located and identified by the Commissioner. The area trespassed by the 1st defendant is identified as 1.210 Cents (Item No.1 property) and .938 cents of land is the area trespassed upon by the 3rd defendant.(item No.2 property) Ext.C7 is the plan prepared by the Advocate Commissioner with the help of Taluk Surveyor. 8. The defendants raised very many contentions against Exts.C7 to C9 (plan, report and Mahazar) prepared by the Commissioner and requested the the trial court to set aside those documents. . The trial court after placing reliance on the oral evidence of DWs 3 and 4 and Exts. C7 to C9 ( plan report and Mahazar) held that the plaint schedule property is correctly located and identified by the Commissioner and therefore the reliefs sought for by the plaintiffs are allowable. 9. Defendants 1 and 2 filed appeal. The 3rd defendant who is retaining illegally item No. 2 property which was measured as .938 cents of land did not challenge the decree and judgment passed by the trial court . The lower appellate court considered the contentions raised by R.S.A. No. 39 of 2004 -5- defendants 1 and 2 in detail. The lower appellate court held that the reports and plan produced by the Commissioner which were marked as Exts. C1 to C3 and Exts. C5 to C7 would prove that the western boundary of the plaint schedule property is M.C. Road and eastern boundary is the nilam of the defendants and the southern property of the plaintiffs lie at a lower level. The lower appellate court agreed with the findings of the trial court and held that the trial court was right in accepting Ext.C7 plan and allowing the recovery of possession of plot Nos. 1 and 2 in Ext.C7 plan. Finding no merits in the appeal the lower appellate court dismissed the same. I have examined the reasonings and findings of the trial court and the lower appellate court in detail. I am also of the view that the courts below rightly held that there is no bonafides in denying the title of the plaintiffs. The plaintiffs obtained title by virtue of Exts. A1 and A2 . The only question is whether the areas trespassed by the defendants which were sought to be recovered belongs to the plaintiffs and if so, they are entitled to recover the same, was elaborately considered and held that the defendants 1 and 3 pending suit trespassed into portions of the plaint schedule property and occupied the same. Therefore the claim of adverse possession and limitation was found against the defendants. The issues are decided on the basis of facts, evidence and circumstances. I think that no different view is possible other than the views taken by the R.S.A. No. 39 of 2004 -6- courts below. The grounds urged are not sufficient enough for this Court to invoke the jurisdiction under Section 100 of the C.P.C.. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 39 of 2004 ---------------------------- JUDGMENT 22nd July, 2009