IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 RSA.No. 373 of 2011() --------------------- AS.60/2010 of ADDL. DISTRICT COURT, NORTH PARAVUR OS.441/2008 of PRINCIPAL SUB COURT, NORTH PARAVUR .................... APPELLANT/(APPELLANT)/PLAINTIFF) ---------------------------------------------------- M.M.GOPALAN,S/O.MANIYAN, MADAVANA HOUSE, THOTTAKKATTUKARA, ALUVA. BY ADVS. SRI.DINESH R.SHENOY SRI.G.HARIKRISHNAN (TRIPUNITHURA) RESPONDENTS/ (RESPONDENTS/DEFENDANTS) --------------------------------------------------------------------- 1. M.M.SARASWATHI, W/O.SREENIVASAN, KARAYATHARA PARAMBIL, POONITHURA DESOM AND VILLAGE, PIN-682038. 2. G.NARAYANAN, S/O.GOVINDAN, 'SAMTHRUPTHI', NADAMA KARA AND VILLAGE-682306. 3. SATHEESH, S/O.NARAYANAN, -DO- -DO- 4. SURESH, S/O.NARAYANAN, -DO- -DO- 5. SANTHOSH,S/O.NARAYANAN, -DO- -DO- THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: VK M.SASIDHARAN NAMBIAR, J ........................................... RSA .NO. 373 OF 2011 ............................................ DATED THIS THE 27th DAY OF MAY, 2011 JUDGMENT Plaintiff in O.S.441 of 2008 on the file of Sub Court, North Paravur is the appellant. Defendants are respondents. Appellant instituted the suit seeking a decree that he has perfected title to the plaint schedule property by adverse possession and for a permanent prohibitory injunction restraining the respondents from trespassing into the plaint schedule property. Trial court, after recording the evidence, dismissed the suit. It was challenged before Additional District Court, North Paravur in A.S.60 of 2005. Learned Additional District Judge, on re- appreciation of evidence confirmed the findings of learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 2. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that courts below did not properly appreciate the evidence and omitted to take note of the fact that in the plaint itself it was specifically pleaded that RSA 373/2011 2 appellant had taken possession of the property subsequent to the delivery taken in the first week of October, 1993 and therefore finding that appellant has not perfected the title by adverse possession is not sustainable. It was pointed out that the evidence was not properly appreciated and on a proper appreciation of the evidence, it should have been found that appellant has perfected title to the plaint schedule property by adverse possession and therefore should have granted the decree for declaration of title and consequential injunction. 3. The judgment of courts below establish that both trial court and first appellate court considered the evidence in detail. Appellant is claiming that he obtained possession of the property in spite of the delivery taken in execution of the decree in O.S.110 of 1986 dated 16.8.1993, in October 1993 and therefore he has perfected title. Courts below held that on the evidence appellant failed to prove the case. It is a concurrent finding of fact. As rightly found by learned District Judge it is admitted by appellant that he instituted O.S.34 of 1994 before Munsiff Court, Aluva evidenced by Ext.B7, copy of the judgment claiming a right of easement over the plaint schedule property. Having admitted RSA 373/2011 3 title of the respondents to that property, appellant cannot contend that he has been in possession of the property denying the title of the respondents. On the evidence, courts below rightly found that appellant failed to establish that he has been in possession of the property for the requisite period and that too, adverse to the respondents and therefore rightly dismissed the suit. On the facts and evidence, I find no substantial question of law involved in the appeal. It is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk