IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH FEBRUARY 2010 / 29TH MAGHA 1931 RSA.No. 189 of 2010() --------------------- AS.24/2008 of SUB COURT,ALAPPUZHA OS.8/1998 of ADDL.MUNSIFF COURT, ALAPPUZHA .................... APPELLANT(S)/APPELLANT/1ST DEFENDANT: -------------------- VISWANATHAN, AGED 63, S/O.KITTAN, KIZHAKKETHAYYIL (POOTHARA) PATHIRAPPALLY VILLAGE, KATTOOR MURI, AMBALAPPUZHA, ALAPPUZHA. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWAMBARAN RESPONDENT(S)/RESPONDENTS 1 & 4 TO 10/PLAINTIFFS 1 & 4 TO 9 AND 2ND DEFENDANT: --------------- 1. A.DAMODARAN, AGED 74 YEARS, S/O.AYYAPPAN, KAITHAPARAMBIL, PATHIRAPALLY VILLAGE, KATTOOR MURI, ALAPPUZHA. 2. LATHIKA, AGED ABOUT 40, D/O.AYYAPPAN, KAITHAPARAMBIL, PATHIRAPALLY VILLAGE, KATTOOR MURI, ALAPPUZHA. 3. RAJU, AGED ABOUT 38, S/O.AYYAPPAN, KAITHAPARAMBIL, PATHIRAPALLY VILLAGE, KATTOOR MURI, ALAPPUZHA. 4. PRIYAPPAN, AGED ABOUT 36, S/O.AYYAPPAN, KAITHAPARAMBIL, PATHIRAPALLY VILLAGE, KATTOOR MURI, ALAPPUZHA. 5. SHAJI, AGED ABOUT 385 S/O.AYYAPPAN, KAITHAPARAMBIL, PATHIRAPALLY VILLAGE, KATTOOR MURI, ALAPPUZHA. 6. SABU, AGED ABOUT 33, S/O.AYYAPPAN, KAITHAPARAMBIL, PATHIRAPALLY VILLAGE, KATTOOR MURI, ALAPPUZHA. RSA NO.189/2010 2 7. GEETHA, AGED ABOUT 30, D/O.THANKAMMA, KAITHAPARAMBIL, PATHIRAPALLY VILLAGE, KATTOOR MURI, ALAPPUZHA. 8. THE STATE OF KERALA, REP. BY DISTRICT COLLECTOR, ALAPPUZHA. R8 BY GOVT. PLEADER SMT. P.N.SUMANGALA THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.189 of 2010 -------------------------------------- Dated this the 18th day of February, 2010. JUDGMENT This appeal arises from judgment and decree of learned Sub Judge, Alappuzha in A.S.No.24 of 2008 confirming judgment and decree of learned Additional Munsiff, Alappuzha in O.S.No.8 of 1998. That was a suit for fixation of boundary and recovery of possession with mesne profit instituted by respondent Nos.1 to 7/plaintiff No.1 and additional plaintiff Nos.4 to 9 (legal representatives of deceased plaintiff No.2). Plaintiffs alleged that they acquired item No.1 of plaint schedule as per assignment deed No.1472 of 1960 and have been in possession and enjoyment of the same. Item No.2 of plaint schedule is the portion of item No.1 allegedly trespassed upon by defendant No.1 on 8.11.1997. It is also the case of plaintiffs that appellant/defendant No.1 influencing revenue authorities manipulated resurvey records in his favour. Complaints were preferred by the plaintiffs to the revenue authorities and District Collector against such resurvey. Plaintiffs wanted recovery of possession of item No.2 on the strength of their title, fixation of boundary and realisation of mesne profits. Defendant No.1 contended that item No.1 is a paddy field and that item No.2 is not part of that property and that plaintiffs have no title or possession over the same. It belonged to him being part of 28.40 ares he purchased as per assignment deed. He denied the allegation of trespass and influencing revenue officials for manipulation of resurvey records. Defendant No.2, State contended RSA No.189/2010 2 that resurvey has become final. Trial court initially dismissed the suit against which the plaintiffs took up the matter in appeal. Learned Additional Sub Judge, Alappuzha disposed of A.S.No.110 of 2003 holding that item No.2 is part of plaint schedule item No.1 acquired by plaintiffs as per assignment deed No.1472 of 1960 but remitted the case to the trial court to decide plea of adverse possession and limitation raised by defendant No.1. After remand, trial court considered that issue and found against defendant No.1 and granted decree as prayed for. That was challenged by defendant No.1 but in vain. Hence Second Appeal urging by way of substantial question of law whether finding of the courts below regarding adverse possession and limitation is legally sustainable. 2. First appellate court by the remand judgment having found that disputed item No.2 formed part of item No.1 belonging to the plaintiffs as per assignment deed No.1472 of 1960 and that judgment having become final defendant No.1 cannot any more claim title over the same. Hence question of title does not arise for a decision in the Second Appeal. What therefore remained for decision is only whether finding of the courts below regarding adverse possession and limitation is legally sustainable. PWs 1 to 4 gave evidence regarding possession of plaintiffs over item No.2 till the alleged trespass on 8.11.1997. PWs 3 and 4 stated that plaintiffs are in possession of the said property before the said trespass. Defendants examined DWs 1 to 3. DW1 is defendant No.1. DWs 2 and 3 stated about the possession of RSA No.189/2010 3 defendant No.1 in item No.2. It came out from the report of advocate commissioner that there was one coconut tree aged about 40 years standing in item No.2 but did not refer to that coconut tree in their pleadings. Trial court was not persuaded to accept evidence of DWs 1 to 3 in preference to the evidence of PWs 1 to 4. Trial court observed that all along, defendant No.1 has been claiming that item No.2 formed part of the 28.04 ares which he acquired as per assignment deed and that there is no evidence that he has been possessing item No.2 with hostile animus towards the plaintiffs. Trial court was also of the view that there was no claim made by defendant No.1 based on his possessory title over item No.2. Accordingly claim of adverse possession was found against defendant No.1 which is confirmed by the first appellate court. On going through the judgments under challenge and hearing learned counsel I find that courts below on a proper appreciation of evidence have found against the plea of adverse possession and limitation. In the circumstances no substantial question of law is involved in the Second Appeal requiring decision. Second Appeal is dismissed in limine. I.A.No.467 of 2010 will stand dismissed. THOMAS P.JOSEPH, Judge. cks