IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 3RD NOVEMBER 2009 / 12TH KARTHIKA 1931 RSA.No. 1121 of 2009() ---------------------- AS.184/2007 of I ADDL. DISTRICT COURT, THIRUVANANTHAPURAM OS.1654/2000 of I ADDL.MUNSIFF COURT,THIRUVANANTHAPURAM .................... APPELLANTS/APPELLANTS 1 & 2/DEFENDANTS 1 & 2 ----------------------------------------------------------------- 1. JOSEPHIN BABU, D/O. VIRASI FERNADEZ, RESIDING AT TC 71/1300-4, HUTS ROSE, VALIYATHURA, MUTTATHARA VILLAGE, THIRUVANANTHAPRUAM. 2. VIRASI FERNANDEZ,RESIDING AT TC71/1300-4 HUTS ROSE, VALIYATHURA, MUTTATHARA VILLAGE, THIRUVANANTHAPRUAM BY ADV. SRI.THOMAS ABRAHAM SRI.DIPU.R SMT.MERCIAMMA MATHEW SRI.K.S.HARIDAS SRI.V.RENJITH KUMAR RESPONDENT(S): RESPONDENT & APPELLANTS 3 & 4/PLAINTIFF & DEFENDANTS 3 & 4 -------------------------------------- 1. AGNUS GALY, RESIDINGAT TC 44/515,HUTS ROSE,VALIYATHURA, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 2. JOSEPH FERNANDEZ, RESIDING AT LILLY COTTEGE, TC.45/13(1), HUTS ROSE, VILIYATHURA, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. 3. LUZZY FERNANDEZ, RESIDING AT LILLY COTTEGE, TC.45/13(1), HUTS ROSE, VALIYATHURA, MUTTATHARA VILLAGE, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 03/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.1121 of 2009 -------------------------------------- Dated this the 3rd day of November, 2009. JUDGMENT Second Appeal arises from judgment and decree of learned Additional District Judge-I, Thiruvananthapuram inA.S.No.184 of 2007 confirming judgment and decree of learned Additional Munsiff-I, Thiruvananthapuram in O.S.No.1654 of 2000. Parties are referred to as plaintiff and defendants as in the trial court for convenience. 2. Initially, the suit was for fixation of boundary and it ended in dismissal. Plaintiff appealed Learned District Judge remanded the case for fresh disposal and thereafter, plaint was amended to incorporate a prayer for declaration of title and recovery of possession along with fixation of boundary. Suit property is 9 (nine) cents in survey No.2798. Plaintiff claimed that the property belonged to her parents as per Ext.A1 and that they obtained purchase certificate (Ext.A2) in respect of the said property. Her parents died in Srilanka. Her brother also died about ten years back in ethnic violence in that country. She claimed that she is in possession and enjoyment of the suit property having inherited it from her parents. As per the amended plaint, it is stated that defendants trespassed into the suit property and took possession. Defendants contended that suit is not maintainable for non-joinder of necessary parties, plaintiff has no title over the property and at any rate, defendants having been in RSA No.1121/2009 2 possession and enjoyment of the suit property for the last 50 years they have perfect title by adverse possession and by law of limitation. Evidence revealed that the building constructed by defendants in the property admittedly belonged to them trespassed into a portion of the suit property. Plaintiff stated that she is not pressing her claim for recovery of possession of the portion of the suit property occupied the building. Trial court answered the issues in favour of the plaintiff and gave her a decree as prayed for excluding the portion occupied by the building of defendants. First appellate court has confirmed that decree. Hence this Second Appeal urging as substantial question of law whether finding of the courts below regarding adverse possession is legal and proper and whether the suit ought to have been dismissed for non-joinder of necessary parties. It is contended by learned counsel that on both the above questions, findings entered by the courts below are erroneous. 3. It is not disputed, or is proved by Exts.A1 to A3 and A15 series that property originally belonged to the parents of plaintiff. There is no dispute that parents of plaintiff died in Srilanka. Plaintiff as PW1 has given evidence regarding the death of her parents in Srilanka. She stated that she had a sister born to her mother in her first marriage. Learned Munsiff has observed that according to the plaintiff that step sister also died in Srilanka. But in the RSA No.1121/2009 3 course of cross examination plaintiff stated that the step sister has share in the property of the mother. Therefore learned counsel contended that step sister ought to have been made a party to the suit. 4. There is no evidence to show that step sister of plaintiff is alive. Assuming that she is also alive that does not in any way affect the maintainability of the suit since one of the co-owner can recover possession of the suit property from the trespasser. What could be said is that if the step sister is alive recovery of possession of the suit property from the trespasser will be for and on behalf of the step sister as well leaving it to the latter to work out her remedy against the plaintiff. Therefore trial court as well as first appellate court are correct in holding that suit is maintainable. No substantial question of law is involved in that finding. 5. What remained is the question whether finding of the courts below regarding adverse possession is legal and proper. It is contended that evidence would show that atleast for the last 50 years defendants have been in continuous possession of the suit property, that a portion of the building belonging to the defendants is situated in a portion of the suit property is admitted by the plaintiff also and hence courts below ought to have accepted contention of defendants regarding their possession for the last 50 years. It is contended by learned RSA No.1121/2009 4 counsel that payment of revenue as per Exts.A3 and A15 series was by the grandmother of the plaintiff and that cannot be taken as a payment by the plaintiff. It is also contended that the said payments after 2000 (suit was filed in the year 2000). 6. On the other hand, what the defendants produced is Ext.B1, possession certificate issued by the Village Officer. That Village Officer is not examined and it is not clear on the strength of what, the Village Officer certified possession of the defendants there being no document in favour of defendants to prove their alleged possession for the period of 50 years. True that the advocate commissioner found that a portion of the building belonging to the defendants has trespassed into a portion of the plaint schedule property and the plaintiff stated that she is not pressing her claim for recovery of possession of that portion. Any length of possession of defendants is not by itself sufficient. It must be with the hostile title against the real owner. There is nothing on record to show that any hostile title was asserted by the defendants to the knowledge of the plaintiff. It has come in evidence that plaintiff was also in Srilanka for quite some time. Therefore, the contention that defendants have perfected title by adverse possession cannot be sustained. Title of the plaintiff over the suit property has been declared excluding the portion occupied by the building of the defendants and accordingly t decree for recovery of possession RSA No.1121/2009 5 was also granted and boundary was fixed. Courts below considered the evidence and found in favour of the plaintiff. 7. On hearing learned counsel and going through the judgments under challenge I do not find any substantial question of law involved requiring admission of the Second Appeal and issue of notice to the respondents. Resultantly, this Second Appeal fails. It is dismissed in limine. I.A.No.2560 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks