IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 1ST OCTOBER 2007 / 9TH ASWINA 1929 SA.No. 918 of 1996(A) ---------------------------------- AS.NO.87/1988 OF PRINCIPAL SUB COURT, ATTINGAL. O.S.NO.53 OF 1976 OF MUNSIFF COURT, VARKALA. ......... APPELLANTS:RESPONDENTS 1 TO 6/DEFENDANTS 1 & 3 TO 7: --------------------------------------------------------------------------------------------- 1. KUTTAN PILLAI, KUNNUMPURATHU VEEDU, JANARDHANAPURAM, VARKALA. 2. SAROJINI AMMA AMMINI OF ...DO...DO.... 3. SAROJINI AMMA KUMARI OF ..DO..DO..... 4. SAROJINI AMMA JALAJAMONY OF ...DO..DO... 5. SAROJINI AMMA JAYA OF ...DO...DO.... 6. SAROJINI AMMA PRABHA OF ...DO..DO.... BY ADV. SRI.V.N.ACHUTHA KURUP (SR.) SRI.B.S.SWATHY KUMAR RESPONDENTS: APPELLANTS 1 TO 5 & RESPONDENTS 8 AND 9 IN FIRST APPEAL/PLAINTIFFS 2, 5, 6, 7 & 8 (ADDL.PLAINTIFFS 2 TO 8): ----------------------------------------------------------------- *1. LEKSHMI AMMA SARASWATHY AMMA, NIRMALA COTTAGE, KURAKKANNI, VARKALA- ( DI E D) - Lhrs RECORDED. 2. SARASWATHY AMMA NIRMALA DEVI OF ..DO...DO...DO.... 3. SARASWATHI AMMA RAJESWARI OF ....DO....DO....DO..... Kss ...2/- ...2.... S.A.NO.918/1996 4. SARASWATHI AMMA SREELATHA, NIRMALA COTTAGE, KURAKKANNI, VARKALA. 5. SARASWATHI AMMA SREEKALA OF ...DO..DO..DO.... 6. NEELAKANTA PILLAI SARACHANDRAN OF ...DO..DO..DO.... 7. NEELAKANTA PILLAI RAVEENDRAN OF ...DO...DO...DO... *IT IS RECORDED THAT R1 DIED AND R2 TO R7 ARE LEGAL HEIRS AND NO OTHER LEGAL HEIRS TO BE IMPLEADED AS PER THE ORDER DATED 6/06/2007 VIDE MEMO C.F.NO.2556/2007. BY ADV. SRI.G.UNNIKRISHNAN) SRI.G.P.SHINOD ) for R2 to R4 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 01/10/2007,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J U D G M E N T No representation. No steps taken. Appeal dismissed. 1/10/2007 Sd/- M.Sasidharan Nambiar, Judge Order on C.M.P.No.2015/1996 in S.A.No.918/1996 Dismissed 1/10/2007 Sd/-M.Sasidharan Nambiar, Judge /True Copy/ P.A.to Judge Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No.918 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of January, 2011. JUDGMENT Defendants 1 to 3 and 6 in O.S. 53 of 1976 before the Munsiff's Court, Varkala are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The original plaintiff, namely, Kesava Pillai Neelakanta Pillai obtained the plaint schedule property as per Ext.A1 dated 31.1.1953. At the time when he obtained the property, it was under a mortgage. In the redemption suit, delivery was obtained as per the decree in O.S. 226 of 1967. Eversince Ext.A1, the original plaintiff and thereafter his successors were in absolute possession and enjoyment of the suit property. The defendants have no manner of right over the suit property. They reside on the northern side of the plaint schedule property and the two properties are separated S.A.918/1996. 2 by well laid boundaries. The defendants are trying to encroach into the plaint schedule property by force and they are creating nuisance in the property. Therefore it has become necessary to lay the suit. 3. Defendants 1 and 2 resisted the suit by pointing out that the claims made by the plaintiffs are untrue. The mortgage made mention of in the plaint was admitted. According to them, the plaint schedule property belongs to Kunnumpurathu family. Subsequently a partition was effected in the family and thereafter the plaint schedule property was lying barren without being possessed by anybody. The second defendant claimed that he had reduced that property into his possession and started cultivation therein. The second defendant was in possession of the land from 1124 onwards and according to the defendants the plaintiffs have lost their title by adverse possession and limitation. They assailed the sale deed in favour of the original plaintiff for want of S.A.918/1996. 3 consideration and that it contains false recitals. According to them, neither the decree in O.S. 226 of 1967 nor the execution proceedings are binding on them as they being not parties to the same. They therefore contended that the plaintiffs are not entitled to any relief. 4. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 5 and documents marked as Exts.A1 to A5 from the side of the plaintiffs. The defendants examined D.Ws. 1 to 6 and had Exts.B1 and B2 marked. Exts. C1 and C1(a) are the commission report and plan. 5. It may be noted here that during the pendency of the suit plaintiff died and additional plaintiffs 2 to 8 were brought on the party array. The second defendant also died and his legal heirs were brought on the party array as defendants 3 to 8. Before this court, the first and fifth respondents are no more and their legal heirs are already on the party array. S.A.918/1996. 4 6. Based on the evidence available in the case, the trial court came to the conclusion that the defendants had perfected their title by adverse possession and limitation and dismissed the suit. The plaintiffs went up in appeal as A.S. 87 of 1988 before the Principal Sub Court, Attingal. The said court on a re-evaluation of the evidence came to the conclusion that the trial court had grossly erred both on facts and in law in reaching the conclusions. According to the lower appellate court, there was clear evidence to show that the plaintiffs had obtained title and possession over the suit property and accordingly a decree was granted in their favour. It is the said judgment and decree that is assailed before this court. 7. The following questions of law are seen formulated in the memorandum of appeal: “(i) It is not the finding of the lower appellate court that the appellants/defendants have not succeeded in establishing the defence of S.A.918/1996. 5 adverse possession and limitation is incorrect and unsustainable in law? (ii) Is it correct to say that the plaintiffs/respondents have lost their title and possession of the plaint schedule property by virtue of continuous and uninterrupted possession over the plaint schedule property by the defendants from 1124 M.E. onwards against the mortgagee and the real owner? (iii) Whether the appellate court is right in holding that the defendants have not succeeded in establishing the plea of adverse possession and limitation while taking into consideration the fact when the plaintiffs have no case that they planted coconut trees having the age group of 15-20 years found in the plaint schedule property together with the absence of evidence on record that the mortgagee was ever in possession of the plaint schedule property from 1099 M.E. onwards? (iv) Is not the finding of the lower appellate court that the delivery proceedings effected in the suit for redemption of mortgage against the mortgagee who admittedly has never S.A.918/1996. 6 taken possession of the plaint schedule property is unsustainable in law. Is not the alleged delivery proceedings are sham as far as the defendants are concerned who are admittedly in actual physical possession of the plaint schedule property from 1124 M.E. onwards? (v) Is it correct to hold that the delivery effected on 13.8.1975 as against the mortgagee is valid without considering the fact and circumstances leading to the given case that the mortgagee was never in possession of the plaint schedule property even from 1099 M.E. and plaintiffs have no case that they have planted fruit bearing and other trees in the age group of 15 - 20 years in the plaint schedule property? (vi) Is the finding regarding the value of improvements arrived at by the lower appellate court without even adverting to the admitted data given by the commissioner correct?” 8. On going through the pleadings, the only question that arises for consideration is whether the claim S.A.918/1996. 7 made by the defendants that they had perfected their title by adverse possession and limitation can be accepted. 9. At the outset itself, one may notice that the plea being one of adverse possession and limitation, the entire burden is on the defendants to establish their case. Ext.A1 document is of the year 1953. The plaintiffs had claimed that at the time of execution of Ext.A1 there was a mortgage subsisting over the property and that was redeemed and delivery was obtained as per Ext.A2 kychit. The trial court was impressed with the argument that since the defendants were not parties to the mortgage suit, delivery kychit produced is not binding on them and also came to the conclusion that the delivery was only a paper delivery. The trial court accepted the contention taken by the defendants that the second defendant had taken possession of the property in 1124 M.E. and continued his possession thereafter. It was on that basis adverse S.A.918/1996. 8 possession and limitation pleaded by the defendants was found in their favour. 10. The lower appellate court on the other hand found that there is nothing to disbelieve Ext.A2 and it was for the defendants to show that it was not correct and true. The lower appellate court was also of the opinion that on going through the evidence there is nothing to show that the defendants had taken possession of the property as claimed by them and that eversince Exts.A1 and A2 the property had been in the possession of the plaintiffs and they are entitled to the reliefs. Therefore the decree of the trial court was reversed. 11. Before this court learned counsel appearing for the appellants contended that the lower appellate court was not justified in reversing the finding of the trial court, which has considered the evidence elaborately and has found in favour of the defendants. There is nothing to show that the findings of the trial court are perverse or S.A.918/1996. 9 unwarranted by the evidence on record. According to the learned counsel, Ext.A2 has no relevance in the context since the appellants were not parties to that suit. Considerable reliance was also placed on Ext.B2, which, according to the learned counsel is sufficient to show that the property was in the possession of the contesting defendants. It is therefore contended that the judgment and decree of the lower appellate court had to be set aside. 12. Learned counsel appearing for the respondents on the other hand contended that the lower appellate court has considered the evidence in the right perspective and has come to a conclusion, which is justifiable both on facts and in law. Ext.A2 document, which is a delivery kychit could not be lightly brushed aside as has been done by the trial court. It was an official act done by an official of the court and there was a presumption regarding its genuineness. It was for the defendants to show that there was no delivery as shown in Ext.A2. The reasons S.A.918/1996. 10 given by the trial court are based on conjunctures and surmises and not on the basis of the evidence on record. It is therefore pointed out that no interference is called for with the lower appellate court judgment and decree. 13. It is curious to note that the trial court came to the conclusion that there was no evidence to show that the mortgagee was put in possession of the property. The trial court goes on to note that no witnesses were examined to show that the mortgagee was put in possession. One has only to pity the trial court. It has omitted to notice the recitals in Ext.A1 deed, there is a clear recital that the property is in the possession of the mortgagee. The vendor is none other than D.W.6. During trial she supported the defendants and says that she never had been in possession of the property conveyed under Ext.A1 document. But in cross examination, she admitted that the mortgagee was in possession. Her evidence shows that she seems to have S.A.918/1996. 11 little regard for truth and no reliance can be placed on her evidence. 14. Ext.A1 clearly recites that the mortgagee is in possession. It is also significant to note that the mortgagor had sued for redemption by filing O.S. 226 of 1967 and had obtained delivery of the property. Ext.A2, the report of the Amin clearly shows that the property was delivered to the decree holder in the suit. Much was said about a shed that was seen in the property by the Commissioner. According to the contesting defendants, that shed was put up by them long ago and that is an evidence to show that they have been in possession of the property. Unfortunately for the contesting defendants the commission report says that at the time of his visit the shed was only four months old. Further, there is a level difference between the two properties. 15. It is inconceivable that in 1953 a recital would have been included in Ext.A1 anticipating a suit in 1967. S.A.918/1996. 12 The vendor of Ext.A1 and the defendants are members of the same family and they obtained the property as per a partition in the family. One may recall here that the stand taken by the contesting defendants, more so the second defendant, is that the suit property was lying unoccupied and he trespassed into the property in 1124 ME corresponding to 1939. Though such a tall claim is made, no evidence was produced by the defendants to show that he was in actual possession of the property and he was enjoying the same. Though they have produced Ext.B2, that is of no help to the contesting defendants. It does not show that it relates to the suit property. Further proceedings in relation to which that document came into existence is also not clear from the records. 16. Again, it is far fetched to say that a suit was instituted in 1967 to redeem the mortgage to defeat the rights of the contesting defendants in the year 1976. At the risk of repetition, one may notice that being a suit based on S.A.918/1996. 13 title, it is for the defendants to show that they were in absolute possession and enjoyment of the suit property in derogation of the rights of the plaintiffs. There is no reason to disbelieve Ext.A2 kychit. If as a matter of fact, the defendants were in actual possession of the property, one would have expected them to obstruct delivery of the property. Of course according to the contesting defendants, it was only a paper delivery and no actual delivery was effected. But in the light of the evidence adduced by P.W.2, such a conclusion is not possible. The defendants were unsuccessful in impeaching the evidence of P.W.2. 17. One cannot omit to note that on an earlier occasion there was a remand of the suit by the lower appellate court to the trial court and it was thereafter the trial had held against the plaintiff. 18. Surprisingly enough value of improvements had been granted to the contesting defendants. Whatever that be, on going through the facts and the evidence on S.A.918/1996. 14 record, it is felt that no grounds are made out to interfere with the judgment and decree of the lower appellate court. The finding of the lower appellate court seems to be based on the evidence on record and does not appear to be perverse or unwarranted or unjustified in law or on facts. No substantial question of law, much less any substantial question of law arises for consideration in this second appeal. This appeal is without merits and it is liable to be dismissed. I do so. There will be no order as to costs. P. BHAVADASAN, JUDGE sb.