IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 RSA.No. 64 of 2011() -------------------- RFA.76/2003 of II ADDL. DISTRICT COURT, KOLLAM OS.57/2000 of MUNSIFF COURT, KARUNAGAPPALLY .................... APPELLANT/ APPELLANT/PLAINTIFF --------------------------------------- KUNJIRAMAN DIVAKARAN, PULLIYIL VEEDU, PULIYOOR VANCHI VADAKKUM MURI, THODIYUR VILLAGE, KARUNAGAPPALLY TALUK. BY ADV. SRI.N.K.SUBRAMANIAN SRI.S.ANANTHAKRISHNAN RESPONDENT/ RESPONDENT/DEFENDANT ----------------------------------- THODIYOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PULIYOOR VANCHI VADAKKUM MURI, THODIYUR VILLAGE-690518, KARUNAGAPPALLY TALUK. ADV. SRI.S.SUDHEESHKAR SRI.A.MUHAMMED RAFFI THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- R.S.A.NO.64 OF 2011 --------------------------------------------- Dated 29th March, 2011 JUDGMENT Plaintiff in O.S.57/2000 on the file of Munsiff court, Karunagappally is the appellant. Defendant is the respondent. Appellant instituted the suit seeking a decree for declaration of title perfected by adverse possession and a consequential permanent prohibitory injunction contending that appellant married a lady belonging to Pulliyil family and has been residing in Pulliyil purayidam from 1957 onwards and plaint schedule property is a pond belonging to Pulliyil Devaswom and appellant reclaimed a portion of the plaint schedule property and planted with coconut trees, plantains etc. and while so, on RSA 64/11 2 10/3/1988 respondent Panchayath sent Ext.A1 notice directing the appellant to vacate the plaint schedule property and appellant ignored that notice and Panchayath did not take further action. It is contended that appellant reliably understood that Panchayath is preparing to take forcible possession of the plaint schedule property for constructing Anganvadi building. Claiming that respondent Panchayath has no right and appellant has perfected title by adverse possession the decree was sought. Respondent filed a written statement denying the title set up by the appellant contending that the property belongs to the Panchayath and respondent never attempted to construct an Anganvadi in the plaint schedule property and there was no such proposal and plaint schedule property originally shown as revenue purambok vested RSA 64/11 3 under Section 82 of Kerala Panchayath Act and it was submerged in water and water logged areas incapable of possession and user by the appellant and on the eastern side of the pond, a retaining wall was constructed by the Panchayath and as Panchayath is in possession of the property there is no necessity to evict the appellant. 2. Learned Munsiff on the evidence of Pws.1 and 2 and Exts.A1 to A4 and Ext.C1, dismissed the suit holding that appellant without recognizing the title of the respondent is not entitled to get declaration of title perfected by adverse possession. Appellant challenged the judgment before Additional District court, Kollam in R.F.A.76/2003. Learned Additional District Judge on re- appreciation of evidence confirmed the findings of the learned Munsiff and dismissed the RSA 64/11 4 appeal. It is challenged in the second appeal. 3. Learned counsel appearing for the appellant was heard. 4. Argument of the learned counsel is that appellant contended in the plaint itself that appellant has been in possession of the property for more than 30 years prior to the institution of the suit and that possession was never disturbed and though Panchayath raised a contention that plaint schedule property vested in the Panchayath under Section 82 of Kerala Panchayath Act, no material was produced to prove that there was any such vesting and respondent in fact did not contest the suit and no evidence was also adduced by the respondent and therefore, an adverse inference has to be taken as against the respondent as held by Honourable Supreme Court in Vidhyadhar v. Manikikrao & another (AIR 1999 RSA 64/11 5 SC 1441). It was argued that evidence establish that appellant has been in possession of the property for more than 30 years as supported by Ext.C1, and hence decree should have been granted. 5. Declaration sought for by the appellant was a declaration of title. That title is the possessory title, perfected by adverse possession. As rightly found by the courts below appellant is not entitled to get a declaration of title perfected by adverse possession, unless appellant establishes that he has been in possession of the property for the requisite period with the necessary animus possessendi against true owner. When the appellant never recognized the right of the respondent Panchayath and contended that the property belongs to Devaswom of the family of his wife, and has no case that he was RSA 64/11 6 possessing the property denying the title of the respondent. Courts below were fully justified in holding that appellant is entitled to declaration of title perfected by adverse possession as sought for. Even though appellant contended that in 1988 appellant received Ext.A1 notice from the Panchayath directing to vacate the property and respondent did not take further steps. Appellant has no case that even on receipt of the notice he sent a reply denying the title of the respondent. In such circumstances, I find no substantial question of law involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj. RSA 64/11 7