IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 30TH MARCH 2011 / 9TH CHAITHRA 1933 SA.No. 552 of 2001() -------------------- AS.22/1996 of PRL.SUB COURT, KOTTAYAM OS.149/1993 of PRL.MUNSIFF'S COURT, KOTTAYAM ------------------ APPELLANTS/APPELLANTS/PLAINTIFFS: ------------------- 1. THANKAM MA, D/O.KOCHUKUTTY AMMA, KAMBIYILL HOUSE FROM KRISHNAPURAM HOUSE, PARIPPU KARA, AYMANAM VILLAGE, KOTTAYAM. 2. K. KUTTANPILLAI, S/O.VELAYUDHAN PILLAI, -DO- -DO- BY ADV. SRI.MATHEW JOHN (K) SRI.BABY THOMAS RESPONDENTS/RESPONDENTS/DEFEDANTS: -------------------- 1. MOHANAKUMARAN NAIR, S/O.KRISHNA PILLAI, EUROTEX; INDUSTIES AND EXPORTS LTD., 23 MIDC- GUKULSHIR-GOON, KOLAPUR, MAHARASHTRA STATE. 2. K K. SIVADASAN NAIR, S/O.KRISHNA PILLAI, 18-20, KASTURBA GANDHI MARG, NEW DELHI. 3. SASIKUMAR, S/O.KRISHNAK PILLAI, KRISHNAPURAM HOUSE, PARIPPU KARA, AYMANAM VILLAGE, KOTTAYAM. 4. PONNAMMA D/O.KOCHUKUTTY AMMA, PULICKAL HOUSE, NEENDUR KARA, ONAMATHURUTHU VILLAGE, KOTTAYAM. R1 TO R4 BY ADV. SRI.SAIGI JACOB PALATTY THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.NO.1244/2001 & I.A.NO.91/2003 IN S.A.NO.552/2001 -------------------------- DISMISSED 30/3/2011 Sd/- HARUN-UL-RASHID, JUDGE. True Copy HARUN-UL-RASHID,J. ------------------------------- S.A. NO.552 OF 2001 ------------------------------- DATED THIS THE 30TH DAY OF MARCH, 2011 JUDGMENT The substantial questions of law formulated in the appeal are as follows: “1) Are not the courts below in serious error in taking the view that the st defendant purchased the 27 cents of land using her individual funds? 2) Are not the courts blow in serious error in not finding that the lst defendant along with her children are owners in respect of the entire 27 cents of property? 3) Are not the courts below in serious error in relying on Section 14 of the Hindu Succession Act. 4) Are not the courts below in serious error in not finding that the appellants have perfected their title to the plaint schedule property by adverse possession and limitation.” 2. Plaintiffs in O.S.No.149/93 on the file of the Prinicipal Munsiff's Court, Kottayam are the appellants. The appeal is directed against the judgment and decree in A.S.No.22/1996 on -2- S.A.No.552/2001 the file of the Principal Sub Court, Kottayam. The suit was filed seeking to set aside document No. 2875 dated 27/10/1992 and for a declaration of title and possession of the plaint schedule property and for an injunction. The trial court dismissed the suit with costs of defendants 2 to 5. The Appellate Court confirmed the said judgment and decree and dismissed the appeal. The parties hereinafter are referred to as the plaintiffs and defendants as arrayed in the suit. 3. The plaintiffs' case is that the plaint schedule property having an extent of 8 cents with a building set apart to the lst plaintiff by her mother, the lst defendant, and thus she is the absolute title holder of the plaint schedule property. Defendants 2 to 5 inter alia contended that the lst plaintiff was permitted to put up a house in the property of her mother and that as per Ext.A5 settlement deed No.2875 dated 27/10/1992 the lst plaintiff was given 5 cents with a building. 4. The trial court as well as the Lower Appellate Court examined the questions as to whether the settlement deed No.2875 dated 2710/1992 is void or is liable to be set aside, whether the -3- S.A.No.552/2001 plaintiffs have got title to the plaint schedule property and whether the plaintiffs are entitled to the relief sought for in the suit. The fact finding court examined the said issues with reference to the oral and documentary evidence adduced by the parties. The evidence in the case consists of oral testimonies PWs.1 to 3, Exts.A1 to A5. The 4th defendant was examined as DW-1. The contesting defendants produced Exts.B1 to B3(a). Exts.C1 and C2 were marked as court exhibits. 5. The total extent of property including the plaint schedule property is 27 cents. The lst defendant's right of title over 27 cents of property is not disputed. The plaintiffs' claim over the plaint schedule property is on the basis of the oral allotment and the question examined is as to whether such oral allotment has been proved or not. The trial court as well as the Appellate Court considered in detail the oral and documentary evidence adduced by the parties. Exts.C1 and C2 reports show that the plaint schedule property is lying contiguous with other property and there is no boundary to separate the plaint schedule property. After considering the oral evidence adduced by PWs.1 to 3, DW1, the -4- S.A.No.552/2001 documents produced and the circumstances narrated in detail, the courts below concluded that the case of the plaintiffs that 8 cents was exclusively allotted to the lst plaintiff cannot be accepted as true. The courts below observed that apart from the oral evidence of PW-3 there is nothing on record to prove that 8 cents of property was exclusively allotted to the lst plaintiff. The courts below also considered the plea of adverse possession set up by the plaintiffs. The courts below accepted the case of the defendants that the lst plaintiff, who is the daughter, was permitted to put up a house in a portion of the property and so it is only a permissive possession. The courts below rightly observed that in order to sustain a plea of adverse possession and limitation plaintiffs have to prove that they were in exclusive possession of the property with necessary hostile animus. After examining the evidence on record, the courts below concluded that since the lst plaintiff is residing on permission of the lst defendant and in the absence of evidence of any exclusive possession, it cannot be found that the possession was with necessary hostile animus. Therefore, the trial court as well as the Appellate Court found that the plaintiffs are not entitled to the -5- S.A.No.552/2001 relief sought for in the plaint. 6. After hearing both sides and on a perusal of the materials on record, this Court is of the view that the reasons stated by the courts below for disallowing the prayer of the plaintiff are justified in all respects. No grounds are made out to interfere with the finding of facts entered by the courts below. No question of law much less any substantial questions of law arise for consideration in the appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. Sd/- HARUN-UL-RASHID, Judge. kcv.