IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH JUNE 2011 / 23RD JYAISHTA 1933 SA.No. 80 of 2000(A) ----------------------------- AS.14/1994 of ADDL.SUB COURT,KOTTAYAM OS.240/1991 of MUNSIF COURT, KANJIRAPPALLY .................... APPELLANT(S): APPELLANTS-DEFENDANTS ---------------------------------------------------------------- 1. MATHAI JOSE, KARAKATTU PUTHENPARAMBIL, MALLIKASSERY KARA , ELIKULAM VILLAGE KOTTAYAM TALUK KOTTAYAM DISTRICT. 2. THAIYAMMA, W/O. JOSE, DO. DO. BY ADV. SRI.MATHEW JOHN (K) RESPONDENT(S): RESPONDENT/PLAINTIFF -------------------------------------------------------------- MATHIA SCARIA, KARAKATTU PUTHENPARAMBIL, ENTHYAR KARA , KOOTTICKAL VILLAGE, IDUKKI DISTRICT. BY ADV. SRI.C.J.JOY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss ORDER ON CMP. NO.188/2000 IN SA. NO.80/2000 DISMISSED 13/06/2011 SD/- P.BHAVADASAN, JUDGE TRUE COPY P.A. TO JUDGE tss P.BHAVADASAN, J. ------------------------------------- SA No.80 of 2000-A ------------------------------------- Dated this the 13th day of June 2011 Judgment The defeated defendants are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff claims to have obtained the plaint schedule property as per Exts.A3 and A4 dated 16.08.1972 and 18.12.1972 respectively. According to him, the first defendant who is his brother and the second defendant, who is his sister-in-law, were allowed to stay in the building situated in the suit property on a temporary basis. The plaintiff is residing far away from the suit property. Except to occupy the building on the basis of the permission granted by the plaintiff, the defendants have no other manner of right over the suit property. The defendants tried to cut and remove trees from the suit property, affecting the rights of the plaintiff. Since the defendants were continuing SA 80/00 2 their mischievous acts, the suit was laid. 3. The suit was resisted by the defendants. They disputed Exts.A3 and A4 documents. According to them, the building in the suit property was put up by the father of the plaintiff and the first defendant. They also contended that the first defendant has also put up several structures in the building and that any right of the plaintiff has been lost by adverse possession and limitation. On the basis of these contentions, they prayed for dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs1 to 4 and documents marked as Exts.A1 to A13 from the side of the plaintiff. The defendants examined DWs 1 to 4 and had Exts.B1 to B4. Ext.C1 commissioner's report and Exts.X1 to X2(f) third party exhibits were also marked. 5. On an appreciation of the evidence in the case, the trial court came to the conclusion that the contentions put forward by the defendants are devoid of SA 80/00 3 any merits and they were put in occupation of the building only on the basis of the permission granted by the plaintiff. Accordingly, the suit was decreed. 6. The defendants carried the matter in appeal as AS No.14/94 before the Sub Court, Kottayam. The lower appellate court, after independently evaluating the evidence on record, concurred with the trial court and dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.Are not the courts below in serious error in upholding the plea of adverse possession and limitation raised by the appellants ? 2.Are not the courts below in serious error in having cast the entire burden on the appellants in the light of the specific plea of the respondent that the possession of the appellants of the plaint schedule property is in their capacity as a licencee under the respondent ? 3.Are not the courts below in serious error in not granting SA 80/00 4 the benefits of the provisions contained in Act 29 of 1958? 4.Are not the courts below in serious error in not finding that the appellants are entitled to the benefits of the provisions contained in Section 51 of the Transfer of Property Act ? 5.Are not the courts below totally unjustified in not following the principles laid down in the decisions reported in 1963 KLT 750 and 1992 II ILR Kerala 343? 8. The learned counsel for the appellants contended that both the courts below have not considered the question of adverse possession and limitation in the proper perspective. There is nothing to show that the structures in the property were put up by the plaintiff. The courts below were not justified in coming to the conclusion that the defendants were in possession of the property on the permission granted by the plaintiff. Accordingly, it is contended that the judgment and decree of the courts below are unsustainable in law. SA 80/00 5 9. The above contentions are only to be rejected on going through the records and the judgment and decree of the courts below. It is not in dispute that there was a partition in the family in which the first defendant was also given properties. The claim of the first defendant was that it was the father, who had put up the building in the property. Once the property is partitioned, one cannot understand why the father should put up a building in that property which is given to the plaintiff. Moreover, there is no evidence adduced by the defendants to show that the building was, in fact, put up by the father of the plaintiff and the first defendant. 10. The defendants have no evidence to show how they came into possession of the building. Admittedly, it does not belong to them. It was under these circumstances that the courts below were constrained to hold that they could have come into occupation of the building only on the basis of the permission granted by the SA 80/00 6 plaintiff. The courts below have also noticed that acts of possession and enjoyment over the suit property have been exercised by the plaintiff from time to time and it is clear that the plaintiff was the owner of the property. It is significant to notice that though the main contention taken by the defendants was one of adverse possession and limitation, no evidence was adduced in support of their claim. After going through Exts.B2 and B3, it can be seen that the defendants came into possession of the building from 1985 onwards, though the first defendant has a case that they had been in possession long before that. It was based on the above evidence that the courts below were inclined to accept the case put forward by the plaintiff. The findings of the courts below are based on evidence on record and are pure questions of fact. It is not shown that the findings are either perverse or unwarranted by the evidence on record. The result is that no substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits SA 80/00 7 whatsoever. It is accordingly dismissed. No order as to costs. P.Bhavadasan, Judge sta SA 80/00 8