IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI TUESDAY, THE 28TH JULY 2009 / 6TH SRAVANA 1931 LA.App..No.352 of 2007 (C) ------------------------------- LAR.30/2003 of I ADDL.SUB COURT,TRIVANDRUM .................... APPELLANT(S): 2ND CLAIMANT ----------------------------------- SAHADEVAN S., PUTHUVAL PUTHEN VEEDU, MUTTADA, THIRUVANANTHAPURAM. BY ADV. SRI.M.R.ANANDAKUTTAN SMT.M.HEMALATHA SRI.R.S.MADHU SRI.MAHESH ANANDAKUTTAN RESPONDENT(S): 1ST & 3RD CLAIMANTS ----------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 2. MOHAN KUMAR, T.C.2/2386, PATTOM, THIRUVANANTHAPURAM. SR. GOVERNMENT PLEADER SRI.BASANT BALAJI SRI.J.HARIKUMAR FOR R2 SRI.HARIKUMAR.S. FOR R2 THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 28/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE & P. Q. BARKATH ALI, JJ. ------------------------------------------------ L. A. A. No.352 of 2007 ------------------------------------------------ Dated this the 28th day of July, 2009 JUDGMENT Pius C. Kuriakose, J The second claimant in LAR.30/03 on the files of the First Additional Sub Court, Thiruvananthapuram, a reference under Section 32, being aggrieved by the award of the Reference Court directing release of the entire compensation under deposit to the third claimant (claimant - c), has preferred this appeal. The total extent acquired by the Government for the purpose of construction of Plamoodu Bridge across Pattom Thodu was 1.10 Ares and as regards the third claimant's title over 0.89 Ares, there was no dispute and the Land Acquisition Officer himself released the compensation for that portion to the third claimant. L. A. A. No.352 of 2007 -2- Dispute was only regarding 0.21 Ares forming only a small portion. The above portion is also covered by the title deed Exts.B1 and B2 in favour of the third claimant which pertains to a total extent of 10.450 cents of land in Sy. No.1801. 2. The contention which was raised by the appellant was that the disputed portion extending to 0.21 Are is the situs of a building bearing Door No.T.C.2/2378 which was in the continuous and uninterrupted possession of the appellant over a period of 35 years. The appellant contended that he has prescribed a title to the same by adverse possession and limitation. The evidence before the Reference Court consisted of oral testimonies of AW1, the wife of the appellant and AW2 the third claimant. Documentary evidence on the side of the second L. A. A. No.352 of 2007 -3- claimant/appellant consisted of Exts.A1 to A7 while the same on the side of the third claimant consisted of Exts.B1 to B6. The learned Subordinate Judge on evaluating the evidence concluded that the appellant had miserably failed in establishing that he had prescribed title to the property by adverse possession and limitation. It was held that the third claimant was the owner and hence, the only person entitled to the compensation under deposit before the Reference Court. 3. We have heard the submissions of Smt.Zohra, the learned counsel for the appellant representing Sri.M.R.Anandakuttan and also Sri.Harikumar, learned counsel for the third respondent. Smt.Zohra took us to the full text of Ext.A1 common judgment of the Sub Court in O.S.1169/95 and O.S.1201/95. We were also L. A. A. No.352 of 2007 -4- taken to Ext.A2 rent agreement. The learned counsel took us also to the oral evidence of AW1/wife of the appellant. 4. Per contra Sri.Harikumar took us extensively through the impugned judgment. The learned counsel submitted that the principles of law relating to acquisition of title by adverse possession have been correctly kept in mind by the learned Subordinate Judge and applied by him properly. According to him, there is no warrant for interference. 5. We have anxiously considered the rival submissions addressed at the Bar. In order that a person acquires title to somebody else's property by adverse possession and limitation, it is necessary that he pleads properly and establishes by cogent evidence that he had been holding the property in open denial L. A. A. No.352 of 2007 -5- of the owner's title, over the statutory period and has prescribed a title for himself. In the instant case, Ext.A2 rent sheet was produced by the appellant himself. Ext.A2 will clearly support the case of the third respondent that the appellant came into possession of the property in question as a tenant under the grand father of the executant of Ext.B1 i.e. the predecessor of the third claimant. 6. We have gone through the oral evidence of AW1. We are of the view that the oral evidence is not sufficient to discharge the heavy onus cast on the appellant to prove acquisition of title by adverse possession and limitation. 7. Ext.A1 common judgment was highlighted by Smt.Zohra as a trump card. Having gone through Ext.A1, we are in agreement with Sri.Harikumar's L. A. A. No.352 of 2007 -6- argument that Ext.A1 does not decide the question of title over the property under acquisition. In fact, though it is true that the suit filed by the third claimant for recovery of possession was dismissed, what we find is that the dismissal of the suit was mainly on the technical reason that the third respondent did not produce the documents establishing that he was having title over the property possessed by the appellant. In fact, it was on technical reason that the suit filed by the third respondent was dismissed. Ext.A1 does not go to show that the appellant is having title over the property under dispute. 8. Having gone through the impugned judgment of the learned Subordinate Judge, we find that the correct legal principles relating to acquisition of title by L. A. A. No.352 of 2007 -7- adverse possession have been kept in mind and applied by the learned Subordinate Judge. We do not find any warrant for interference. 9. This appeal stands dismissed, however, in the circumstances, without any order as to costs. PIUS C. KURIAKOSE JUDGE P. Q. BARKATH ALI JUDGE kns/-