IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932 SA.No. 756 of 1996() -------------------- AS.62/1991 of SUB COURT, MUVATTUPUZHA OS.310/1988 of MUNSIFF COURT,MUVATTUPUZHA .................... APPELLANTS/APPELLANTS 1 & 2/DEFENDANTS 1& 2: ---------------------------------------------------------- 1. GEORGE AGED 49 YEARS, S/O.JACOB CHALAKARA, MALIKAYIL, THIRUMARADI VILLAGE, KAKKOOR KARA. 2. EMILY, AGED 38 YEARS, D/O. -DO- -DO- PRESENT ADDRESS EMILY BABU, S/O.C.MATHEW, 2026, ROYAL LANE, 1249 DALLAS TEXAS 75229 U.S.A BY ADV. MR.T.M.CHANDRAN MR.V.A.SASIDHARAN RESPONDENTS/REPONDENTS 1 TO 4 AND APPELLANTS 3 & 4/PLAINTIFF AND DEFENDANTS 3 TO 5: ------------------------------------------------------------------------------- 1. MATHEW, AGED 72 YEARS, S/O.OUSEPH, CHENNADU HOUSE, THIRUMARADI VILLAGE, KAKKOOR KARA. 2. MANI, AGED 52 YEARS, S/O.OUSEPH, PADINJAREKAITHAMANAYIL, -DO- -DO- 3. THOMAS, AGED 69 YEARS, S/O.ABRAHAM, KAITHAMANAYIL, -DO- -DO- 4. MARIAM, AGED 65 YEARS, W/O.THOMAS -DO- -DO- -DO- (DIED-LR. 3RD RESPONDENT THOMAS) ADV. MR.C.RAMAN FOR R1 MS.MINI M.R. FOR R1 MS.PREETHY KARUNAKARAN FOR R1 MS.MEENA.A. FOR R1 MR.JAYKAR.K.S. FOR R1 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 756 of 1996 ORDER ON C.M.P.NO.1595/1996 IN S.A.NO.756/1996 DISMISSED. 26.5.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.756 Of 1996 ---------------------- Dated this the 26th day of May, 2010. J U D G M E N T The defendants 1 and 2 in O.S.No.310 of 1988 on the file of the Munsiff Court, Muvattupuzha, are the appellants. The suit was filed by the first respondents/plaintiff for declaration of title, recovery of possession and perpetual prohibitory injunction. The trial court decreed the suit declaring that the plaintiff has got title to plaint A, B & C schedule properties and also allowed to recover plaint A,B & C schedule properties. The prayer for grant of injunction was also allowed. The trial court ordered recovery of plaint A schedule property from defendants 1 & 2 and recovery of possession of B & C schedule properties from other defendants. The other defendants did not chose to file appeal before this Court. Therefore the dispute at this state relates only to plaint A schedule property. In the appeal preferred by the defendants 1 to 4 as A.S.No.2 of 1991, the learned Sub Judge confirmed the decree and judgment passed by the trial court. Parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. S.A.No.756 Of 1996 ::2:: 2. The plaintiff claimed title to plaint A schedule property on the strength of Exts.A1 & A2 deeds. The appellants disputed the title of the plaintiff. According to the appellants plaint A schedule property do not form part of the property covered by Exts.A1 & A2 and they further contended that they are in continuous possession and enjoyment of the plaint A schedule property and that the plaintiff never acquired possession of plaint A schedule property. As the defendants 1 & 2 disputed the title of the plaintiff over plaint A schedule property, the trial court proceeded and examined the issue as to whether the plaintiff is entitled to a decree as prayed for. The trial court examined the witnesses and rightly observed that the defendants 1, 3 & 5 disputed the plaintiff's title to plaint schedule properties, the onus is on the plaintiff to prove that the plaintiff is the title holder of the plaint schedule properties. 3. On the side of the plaintiff PW1 was examined and Exts.A1 to A10 were marked. DWs 1 to 5 were examined on the side of the defendants and Exts.B1 and B2 were marked. Commission report and plan were marked as Exts.C1 and C1(a). S.A.No.756 Of 1996 ::3:: 4. PW1 testified before the court that in the year 1982 when he was hospitalized the defendants trespassed into plaint A, B & C schedule properties and reduced them into their unlawful possession. At the instance of the plaintiff an advocate commissioner was deputed to identify the plaint schedule properties. A Taluk Surveyor was also deputed to assist the advocate commissioner. Plaint A, B & C schedule properties are shown as plot Nos.1 to 4 in Ext.C1(a). Ext.C1(a) will disclose the fact that plaint A, B & C schedule properties form part of the properties covered by Exts.A1 and A2. Though defendants 1, 3 & 5 disputed the plaintiff's title to plaint A, B & C schedule properties, they have not stated in the written statement as to how they acquired title to B & C schedule properties. Appellants in their written statement contended that plaint A, B & C schedule properties are in their possession by virtue of Exts.A4 and B2 and the first defendant is in possession for an on behalf of the second defendant. The trial court observed that the defendants 1 & 2 never applied nor asked the commissioner to measure out the plaint A schedule property on the basis of Ext.B2 sale deed S.A.No.756 Of 1996 ::4:: No.1135 of 1983 to show that plaint A schedule property form part of the said document. At the same time the trial court accepted the report and plan prepared by the commissioner and concluded that the property covered by Ext.C1(a) form part of the property covered by Exts.A1 & A2. The trial court also noted that the plaintiff had produced Ext.A6, copy of the survey plan to show that the locational lie of the property shown in Ext.C1 and Ext.A6 are same. 5. Trial court held that Ext.C1(a) shows that plaint schedule properties covered by Exts.A1 & A2 do not form part of Ext.B2 as contended by the appellants. Trial court also concluded that though defendants 1, 3 & 5 filed objections to Exts.C1 and C1(a). The objections were not substantiated. On facts, trial court also concluded that the evidence tendered by the plaintiff regarding the alleged trespass is true. The trial court also examined the question as to whether the plea of adverse possession set up by the appellants and other defendants are true. The trial court concluded that the plaintiff has established his title to the plaint schedule properties and the defendants S.A.No.756 Of 1996 ::5:: failed to prove any right over plaint A, B & C schedule properties and further held that the evidence tendered by the defendants is not sufficient enough to hold that they had perfected the title to the plaint schedule properties by adverse possession and limitation. In the appeal preferred by the defendants 1 to 4, the appellate court re-appreciated the evidence and held that no grounds are made out by the appellants to interfere with the findings recorded by the trial court. 6. I have examined the rival contentions of the parties with reference to the oral and documentary evidence and grounds raised in the second appeal. I do not find any reason to interfere with the conclusions and findings recorded by the trial court which was confirmed by the appellate court. No question of law much less any substantial question of law arises for consideration in the appeal. In the result, the appeal fails and accordingly, dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-