IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 17TH FEBRUARY 2011 / 28TH MAGHA 1932 SA.No. 206 of 1998() ------------------------- AS.94/1990 of SUB COURT, OTTAPPALAM OS.11/1989 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT(S): (LEGAL REPRESENTATIVES OF THE DEFENDANT IN THE TRIAL COURT – RESPONDENTS 2 TO 6 IN THE LOWER APPELLANT COURT) ------------------------------------------------------------------------------- 1. KUNHIPATHUMMA, W/O. MAMMAD, MARAKKANTHODI HOUSE, P.O. VEERAMANGALAM, (VIA) THRIKKADERI, OTTAPPALAM TALUK, PALAKKAD DISTRICT. 2. KUNHALAN, S/O. MARAKKANTHODI MAMMAD, -DO- -DO- 3. KUNHI HASSAN, S/O. MARAKKANTHODI MAMMAD, -DO- -DO- 4. UMMACHU,D/O. MARAKKANTHODI MAMMAD, -DO- -DO- 5. NABEEZA, D/O. MARAKKANTHODI MAMMAD, -DO- -DO- BY ADV. SRI.SANTHEEP ANKARATH RESPONDENT(S):(PLAINTIFF IN THE TRIAL COURT AND APPELLANT IN THE LOWER APPELLATE COURT) ------------------------------------------------------------------------------- ALI, S/O. ODUVANGATTIL KUNHAYAMU, VEERAMANGALAM AMSOM AND DESOM, P.O. VEERAMANGALAM, (VIA) THRIKKADERI, OTTAPPALAM TALUK, PALAKKAD DISTRICT. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs ORDER ON C.M.P. NO.599/1998 IN S.A. NO.206/1998 DISMISSED 17/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs P.BHAVADASAN, J. ------------------------------------- SA No.206 of 1998-G ------------------------------------- Dated this the 17th day of February 2011 Judgment The defendant in OS No.11/89 before the Munsiff's Court, Ottappalam, who suffered a decree at the hands of the lower appellate court, is the appellant before this court. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The plaintiff laid claim on the plaint schedule property on the basis of delivery obtained in a partition suit by way of EP No.171/87 in OS No.30/70. The allegation was that the brother of the plaintiff had, with ulterior motives, inducted the defendant in possession of the plaint schedule property and he was in possession of the property. He has no right to continue in possession of the property and on that basis, the suit was laid. 3. The defendant resisted the suit by pointing out that he has been in possession of the property from SA 206/98 2 04.10.1964 and that he has been holding the property as his own, adverse to the interest of the plaintiff. The judgment and decree in the partition suit will not enable the plaintiff to claim a fresh period of limitation for suit. It is finally contended that the right if at all any of the plaintiff was lost by adverse possession and limitation. 4. On the basis of the above pleadings, necessary issues were raised by the trial court. The evidence consists of Exts.A1 to A8 from the side of the plaintiff and Exts.B1 to B8 from the side of the defendant. Neither side adduced oral evidence. 5. On an evaluation of the materials before it, the trial court came to the conclusion that the rights of the plaintiffs are lost by adverse possession and limitation and accordingly dismissed the suit. 6. The plaintiff carried the matter in appeal as AS No.94/90 before the Sub Court, Ottappalam. The lower appellate court found that there was no oral evidence adduced by the defendant in support of his claim for SA 206/98 3 adverse possession. It was also held that mere possession, even assuming the defendant had from 04.10.1964, by itself will not lead to the conclusion that he had been holding the property adverse to the interest of the plaintiff. Holding that the claim of adverse possession by the defendant has not been proved, the judgment and decree of the trial court were set aside and the suit was decreed. Hence the second appeal. 7. Notice is seen issued on the following questions of law raised in the second appeal : A)Cannot the findings in Ext.B3 judgment inter parties be relied on to found a plea of adverse possession in the present suit ? B)Cannot the possession of the defendant under an invalid document by itself constitute the possession adverse in the facts and circumstances of the case and in view of the findings in Ext.B3 judgment ? C)The defendant having been found in exclusive possession of the property to the exclusion of the real SA 206/98 4 owners, in the earlier litigation inter parties, should not the presumption that those state of affairs continue to exist be applied in favour of the defendant ? D)Cannot the plea of adverse possession be proved without adducing oral evidence ? E)Was the court below justified in not remanding the case to the trial court in the peculiar facts and circumstances of the case ? F)The court below justified in not awarding value of improvements ? 8. The learned counsel for the appellant pointed out that the lower appellate court was not justified in reversing the findings of the trial court since the findings of the trial court were based on evidence on record and the admissions by the plaintiff in the plaint. Even when the partition suit was laid in the year 1970, the possession of the defendant was admitted and if that be so, the suit filed in 1989 has to fail on the ground of adverse possession and limitation. The observation of the lower appellate court SA 206/98 5 that since no oral evidence is adduced, the defendant has to fail, cannot be countenanced. In the case on hand, there is sufficient documentary evidence to show that the defendant has been holding the property adverse to the interest of the plaintiff and the lower appellate court has omitted to notice these vital aspects. Accordingly, it is stated that the decree is unsustainable.. 9. It is an admitted fact that in the earlier partition suit i.e., OS No.30/70, the defendant in the suit was also a party. Even though the trial court dismissed the partition suit, the appellate court decreed the same and passed a preliminary decree. It is not in dispute that the plaint schedule property was set apart to the share of the plaintiff. It is equally not in dispute that he had filed EP No.171/87 for delivery of the property and he did obtain symbolic delivery of the property. It is thereafter, that the present suit has been laid. 10. The allegation in the plaint was that the brother of the plaintiff had, with ulterior motives, inducted SA 206/98 6 the defendant into possession of the suit property and he had no right to continue in possession of the property. 11. The defendant had set up the claim of adverse possession and limitation. But, surprisingly enough, he felt it unnecessary to give any oral evidence in this regard and seems to be satisfied by producing Exts.B1 to B8 documents. 12. The essential ingredient of adverse possession is the animus to hold hostile possession. Reliance placed on the documents produced by the plaintiff and the allegation that the defendant is in possession by themselves, are not sufficient to constitute adverse possession and limitation. One must remember that the suit is one based on title and when the plaintiff establishes his title, the burden shifts to the defendant to establish his claim for adverse possession. Except for showing that the defendant was in possession, from the documents produced by him, there is nothing to show that he was holding the property adverse to the interest of the plaintiff. SA 206/98 7 The trial court was persuaded to take the view of adverse possession and limitation, mainly based on the fact that the plaintiff had obtained only a symbolic delivery in the earlier partition suit. The lower appellate court has found that merely because symbolic delivery is taken by the plaintiff, it does not mean that the claim of adverse possession of the defendant was admitted by the plaintiff. It is under these circumstances that the lower appellate court found that the absence of oral evidence in support of his claim for adverse possession should prove fatal. True, the plaintiff admits possession of the defendant, but the plaintiff has specifically denied the right of the defendant to remain in possession of the property. Under these circumstances, it was for the defendant to say under what authority he was holding the property. The defendant has to necessarily establish by adducing convincing evidence that he had dealt with the property as his own in derogation of the right of the plaintiff. Mere possession, however long it may be, does not constitute adverse possession. The required SA 206/98 8 animus to do must be clearly esablished. There was no such attempt from the part of the defendant. Therefore, the lower appellate court was perfectly justified in decreeing the suit. No grounds are made out warranting interference with the judgment and decree of the lower appellate court. No substantial questions of law arise for decision in this second appeal. The second appeal is without any merits and it is accordingly dismissed. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA 206/98 9