IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 10TH FEBRUARY 2009 / 21ST MAGHA 1930 SA.No. 337 of 2002(F) --------------------- AS.8/1993 of ADDL.DISTRICT COURT,KOTTAYAM OS.214/1985 of MUNSIFF COURT, ETTUMANOOR .................... APPELLANT(S): RESPONDENTS 2 TO 6/LEGAL REPRESENTATIVES OF 3RD DEFENDANT ---------------------------------------------------------------- 1. THRESIA,KANIAMALA VEEDU, NAPPATHIMALA BHAGOM,MANNANAM KARA, ATHIRAMPUZHA VILLAGE. 2. JOSEPH,KANIAMALA VEEDU,NAPPATHIMALA BHAGOM,,MANNANAM KARA, ATHIRAMPUZHA VILLAGE. 3. THOMAS, KANIAMALA VEEDU, NAPPATHIMALA BHAGOM,MANNANAM KARA, ATHIRAMPUZHA VILLAGE. 4. MARY,MUNDUVELIL,ATHIRAMPUZHA. 5. GRACY,THAKADIYEL,MANARCAD. BY ADV. SRI.M.NARENDRA KUMAR RESPONDENT(S): APPELLANT/PLAINTIFF ---------------------------------- MARIAM,RESIDING AT KOOMBANMALA VEETTIL, NAPPATHIMALA BHAGOM,MANNANAM KARA, ATHIRAMPUZHA VILLAGE. ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.337 of 2002 -------------------------------------- Dated this the 10th day of February, 2009. JUDGMENT This appeal arises from the judgment and decree passed by the learned Additional District Judge, Kottayam in A.S.No. 8 of 1993 allowing the respondent/plaintiff to recover possession of plot '3(c)' marked in Ext.C1(a). Respondent filed the suit against defendants 1 to 3 alleging that the schedule property, 10 cents in sy.No.812/1 belonged to her as per Ext.A1 and that the property on the west and south belonged to defendants 1 and 2 and 3rd defendant, respectively. Defendants 1 and 2 trespassed into about one cent on the western side of the suit property while the 3rd defendant trespassed into about 3 ½ cents on the southern side of the suit property. Learned Munsiff found that defendants 1 and 2 trespassed into the portion marked as '3(b)' in Ext.C1 (a) and allowed recovery of possession of that portion. That part of the judgment was not challenged by defendants 1 and 2. The prayer for recovery of possession of the portion marked '3(c)' in Ext.C1(a) which according to the respondent is the portion trespassed upon by the 3rd defendant was disallowed. Respondent took up that part of judgment and decree in appeal. Learned Additional District Judge found that the 3rd defendant had trespassed into the portion marked 3(c) in Ext.C1(a), held against the plea of adverse possession and limitation raised by the 3rd defendant and granted decree in favour of the SA No.337/2002 2 respondent in respect of that portion as well. The judgment and decree of the learned Additional District Judge are under challenge at the instance of the appellants who are the legal representatives of the 3rd defendant. 2. Substantial question of law arising for a decision in this appeal is whether a decree for recovery of possession based on title could be granted without locating the property of the respondent and 3rd defendant on the basis of their respective title deeds. 3. It is contended by the learned counsel for appellants that the judgment and decree of the first appellate court suffer from illegality in that it was without measuring the property belonging to the 3rd defendant as per Ext.B1, that recovery of possession of plot 3(c) in Ext.C1(a) was granted. It is also contended by the learned counsel that learned Additional District Judge did not take into account the oral evidence let in by the 3rd defendant. Further contention is that at any rate, the suit having been filed beyond 12 years from the date of alleged dispossession of the respondent, 3rd defendant has perfected title over the disputed plot ‘3(c)’ in Ext.C1(a). 4. Ext.A1 is the title deed relied on by the respondent. It is in respect of 10 cents in old sy.No.812/1A-2. Ext.B1 is the document of title relied on by the 3rd defendant. It is in respect of 39 ½ cents in old sy.No.812/1A. It is not very much in dispute that these properties belonged to a common owner under SA No.337/2002 3 whom the respondent was a kudikidappukary and an agreement to shift the kudikidappu culminated in Ext.A1 in favour of the respondent. On the request of the respondent, the advocate commissioner inspected the suit property and submitted report and plan – Exts.C1 and C1(a), respectively. Plan was prepared with the assistance of the surveyor. In the meantime, re-survey of the properties was completed. In Ext.C1(a) advocate commissioner has shown plot 3(a) as belonging to the respondent as per Ext.A1 and the extent of the property in the possession of the respondent is found to be 6.70 cents (as against the 10 cents). It is also reported by the advocate commissioner that re-survey number of the property covered by Ext.A1 is 377/3. The 3rd defendant owned the property on the south as per Ext.B1. Re-survey number of that property is found to be 377/4. Advocate commissioner found that the 3rd defendant is in possession of 3.30 cents in re-survey No.377/3 which corresponds to the old survey number referred to in Ext.A1 while the re-survey number of the property referred to in Ext.B1 should be 377/4. In other words, the 3rd defendant was found to be holding 3.30 cents in the re-survey in which the respondent owned property as per Ext.A1. It is based on the above that learned Additional District Judge found that plot 3(c) formed part of the property belonged to respondent as per Ext.A1. 5. It is contended that no effort was made by the respondent to get the property belonging to the original 3rd defendant as per Ext.B1 measured to find out whether he was in possession of any excess land. Since this is a case SA No.337/2002 4 where the respondent is seeking recovery of possession on the strength of her title, the burden was squarely on her to prove that she had title over plot 3(c) marked in Ext.C1(a). But, it is seen that the 3rd defendant had filed application for issue of a commission to report on several aspects as referred to in the application not requesting that the property covered by Ext.B1 be measured. The 3rd defendant having taken up the burden it is idle to contend that it was not his responsibility to get the property in his possession as per Ext.B1 measured. I also find that against Exts.C1 and C1(a), defendants 1 to 3 filed objection but in that objection also it is not contended that the property in the possession of the 3rd defendant should have been measured as per Ext.B1. Hence the contention that respondent did not get the property as per Ext.B1 measured and hence the claim against plot 3(c) in Ext.C1(a) should fail, cannot be accepted. 6. So far as Exts.C1 and C1(a) are concerned wherein the re-survey numbers of the properties belonging to the respondent and defendants 1 to 3 are stated, I find from the objection submitted by defendants 1 to 3 to Exts.C1 and C1(a) that no contention is advanced that the re-survey numbers of the properties belonging to the respondent and defendants 1 to 3 are not correct. Advocate commissioner and surveyor have given evidence and the learned Additional District Judge found that there is no reason why Exts.C1 and C1(a) should not be accepted. It is also pertinent to note that as per Ext.B1, the 3rd defendant had not acquired any land in the survey number which now SA No.337/2002 5 corresponds to re-survey No.377/3. In these circumstances, there is little reason to interfere with the finding of the learned Additional District Judge that plot 3(c) formed part of the property belonging to the respondent as per Ext.A1. 7. The contention of the 3rd defendant that he has perfected title over the disputed plot 3(c) by adverse possession and limitation stems from the alleged existence of a boundary (stone wall) along PS line marked in Ext.C1(a) between the property admittedly belonging to the respondent and plot 3(c). Reliance is also placed on the evidence of the witnesses examined by the 3rd defendant and the report of the advocate commissioner regarding the approximate age of certain improvements in the respective plots 8. So far as the existence of stone wall along PS line is concerned, it is seen from the evidence that at the time of inspection the 3rd defendant wanted the advocate commissioner to dig up the portion along PS line and on doing so, a row of stones was were seen at that place (not continuous) at a depth of about 1 ½ feet. Learned Additional District Judge observed that if that were a stone wall and had the oldness as contended by the 3rd defendant, it should have been constructed even prior to Ext.B1 at a time when the entire properties belonged to the common owner and there was no necessity at that point of time to enjoy the properties by putting up such a stone wall. Moreover, absence of any such stone wall on the surface of the land at the material time was also taken into account. SA No.337/2002 6 9. So far as the existence of the survey stone on the boundary between the scheduled property and the property belonging to the 3rd defendant is concerned, advocate commissioner found that measurement did not indicate that those are survey stones and that has been accepted by the learned Additional District Judge. The mere reporting of the approximate age of the improvements, in the light of oral evidence given by both sides was not accepted by the learned Additional District Judge to hold in favour of adverse possession pleaded by the 3rd defendant. When the suit is filed for recovery on the strength of title and title is admitted or proved, the only defence available is adverse possession and law of limitation which is to be pleaded and proved by the person claiming it. In this case though there is a plea raised in that behalf that is not substantiated by acceptable evidence. There is little reason to interfere. Appeal fails. It is dismissed. No cost. C.M.P.No.1286 of 2002 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.337/2002 7 Thomas P.Joseph, J. S.A.No.337 of 2002 JUDGMENT 10th February, 2009.