IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 RSA.No. 655 of 2008() --------------------- AS.3/2003 of SUB COURT, THIRUVALLA .................... APPELLANTS/DEFENDANTS ----------------------------------------- 1. JOSEPH @ KUTTAPPAN, AGED 66 YEARS, S/O.LATE SRI.MATHAI, PEEDIKAPARAMPIL HOUSE, KURIYANNOOR P.O., THOTTAPPUZHASSERY VILLAGE, THIRUVALLA TALUK, PATHANAMTHITTA DISTRICT. 2. SANTHAMMA, D/O.MATHAI, AGED 62 YEARS, DO. 3. DAVID MATHAI, S/O.MATHAI, AGED 60 YEARS, DO. 4. MARY, W/O.LATE BABY MATHAI, DO. 5. LIJO P.MATHEW, 30 YEARS, S/O.LATE BABY MATHAI, DO. 6. BINOY P.BABY, 28 YEARS, D/O.LATE BABY MATHAI, DO. BY ADV. SRI.N.N.SASI RESPONDENT(S): PLAINTIFFS ------------------------- MARIAMMA, 72 YEARS, W/O.MATHEW, MEMENAAYAYA, KALLIPPARA VEETTIL, KURIANNOOR P.O., THIRUVALLA TALUK, PATHANAMTHITTA DIST. ADV. SRI.P.HARIDAS FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR,J. ................................................... R.S.A. No. 655 of 2008 .................................................... DATED: 28-11-2008 JUDGMENT The defendants in O.S. No. 396 of 1996 on the file of the Munsiff's Court, Tiruvalla are the appellants in this Second Appeal. The said suit was originally for declaration of title and possession of the plaint schedule item No. 1 admeasuring 75 cents comprised in Survey No. 152/1 of Thottappuzha Village in Thiruvalla. Pending suit, the suit was amended for recovery of possession of plaint schedule item No. 2 described as 20 cents forming part of plaint schedule item No.1. Plaint schedule item No.1 was purchased by the plaintiff as per Ext.A1 sale deed dated 15-2-1988. The present suit was preceded by two other suits O.S. No. 624 of 1994 by the present plaintiff and O.S. No. 630 of 1994 by the father of the first defendant in respect of plaint schedule item No. 2. Both the suits were tried and strangely both suits were decreed. Thereafter the present suit was filed for declaration of title and recovery of possession of R.S.A. No. 655 of 2008 -:2:- the plaint schedule item No.2. A commission was taken out in the present suit. It was a survey commission. The commissioner filed Ext.C1 report and C1 (a) plan. The plaint schedule item No. 1 was identified as plot c,b,36,37,38, g,f,e,d, 29, 28, 30 and 31 comprised in old Survey No. 152/1 corresponding to re-survey Nos. 14/15, 14/16 and 22/6 having a total extent of 29.30 Ares corresponding to 72.31 cents. Plaint schedule item No. 2 was identified as the plot admeasuring 12.60 Ares and comprised in re-survey 22/6. The contention of the defendants was that the plaint schedule item No. 2 comprised in re-survey No. 22/6 originally belonged to Mathai the father of defendants, the said Mathai had got the property along with adjacent properties as per Ext.B4 sale deed dated 25-6-1957 that after the death of Mathai in the year 1996 the first defendant had put up a house thereon and was residing there till 1990 after which he shifted his residence to the family property situated to the north of plaint schedule item No.I. The defendants also raised a counter claim for declaration of title and injunction in respect of the plaint schedule item No. 2 comprised in R.S. No. 22/6. The Commissioner with the aid of survey officials was unable to find the property covered by Ext.B4 R.S.A. No. 655 of 2008 -:3:- sale deed relied on by the defendants in re-survey No. 22/6 which was actually found to be a portion of the property covered by Ext.A1 sale deed and constituting portion of the plaint schedule item No. I. The defendants did not plead adverse possession or limitation. Since the suit was filed after the new Limitation Act, 1963, it was not necessary for the plaintiff to prove subsisting title. On proof of title which was not defeated by a plea of adverse possession and limitation, the plaintiff was entitled to a decree as has been granted by the courts below. The courts below have rightly granted the relief of declaration of title over the plaint schedule item No. 1 and recovery of possession of plaint schedule item No. 2 over which there was no plea of adverse possession and limitation. No question of law, much less, any substantial question of arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 28th day of November 2008. V.RAMKUMAR, JUDGE ani R.S.A. No. 655 of 2008 -:4:-