IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 SA.No. 484 of 2000(G) --------------------- AS.409/1996 of DISTRICT COURT, THRISSUR OS.276/1991 of MUNSIFF COURT,WADAKKANCHERRY .................... APPELLANT(S)/APPELLANT/1ST DEFENDANT: -------------- AMMINI ALIAS KUNHIKKAVAMMA, D/O.ERAVAKULANGARA LAKSHMI AMMA, PADINJATTUMMURI, WADAKKANCHERRY. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S)/RESPONDENTS 2 TO 8/LEGAL HEIR OF THE PLAINTIFF AND OTHER DEFENDANTS: --------------- 1. E.VENUGOPAL, C/O.MADAVI, RANCHOODAS AND COMPANY (SOLICITORS) YUSUF BUILDINGS, BOMBAY 400001. 2. DEVAKY AMMA, D/O.ERAVAKULANGARA KALIKUTTY AMMA, PADINJATTUMMURI, WADAKKANCHERRY, TRICHUR. 3. VELUKUTTY, SON OF DEVAKY AMMA, -DO- -DO- 4. RAMAN, -DO- -DO- -DO- 5. SANTHAKUMARI, WIFE OF ERAVAKULANGARA VELUKUTTY, -DO- -DO- 6. LAKSHMIKUTTY, WIFE OF RAMANKUTTY, -DO- -DO- (*)7. VIDYASAGARAN, SON OF CHINGAPURATH PARUKUTTY AMMA, MANALITHRA, WADAKKANCHERRY (DIED. LRS IMPLEADED) ADDL.R8. PADMAJA VIDYASAGAR, CHINGAPURATH HOUSE, MANALITHARA, TRICHUR. ADDL.R9. VIPIN SAGAR, S/O.-DO- -DO- ADDL.R10. VINITH SAGAR, -DO- -DO- SA NO.484/2000 2 (*)THE LEGAL REPRESENTATIVES OF DECEASED 7TH RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 8,9 AND 10 AS PER ORDER DATED 28.5.2004 ON IA NO.677/2003 ADV. SRI.P.RADHAKRISHNAN (1) FOR ADDL.R8 TO ADDL.R10 SRI.MADHU RADHAKRISHNAN SRI K.S.ANIL KUMAR VAIKOM SRI.K.P.PADMAKUMAR FOR R7 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 31.3.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.484 of 2000 -------------------------------------- Dated this the 31st day of March, 2009. JUDGMENT In this Second Appeal at the instance of defendant No.1 arising from the judgment and decree of the first appellate court which confirmed the decree for recovery of possession of the suit property with mesne profits on the strength of title the following substantial questions of law are raised for a decision: (i) Whether appellant/defendant No.1 has not proved her case of adverse possession and limitation in the case especially in view of the fact that plaintiff had no case as to how defendant No.1 acquired possession? (ii) Whether the finding of the court below regarding title of the plaintiff could be legally sustained in view of the proceedings of the Land Tribunal proved by Exts.B1 to B3 and payment of pattam as per Exts.B4 to B6? (iii) Whether the court below was legally correct in not considering the relevant documentary evidence as per Exts.B2 to B6 and also the oral evidence of DWs 1 and 2. Plaintiff died during the pendency of the first appeal and her legal representatives were impleaded. Parties are referred as plaintiff and defendants as in the trial court for convenience. SA No.484/2000 2 2. Ext.C2 is the plan prepared by the advocate commissioner which the courts below have accepted and which is not under challenge before me. 'Plot C' marked in yellow colour in Ext.C2 with one cent on its east marked in blue colour is the suit property. Plaintiff claimed that a total extent of 47 cents including the suit property belonged to her father, Narayanan Nair as per Ext.A1. As per assignment deed No.2114 of 1954, 20 cents out of the said 47 cents was assigned to the mother of appellant/defendant No.1. That portion is marked as 'plot A' in Ext.C2 the extent of which found by the commissioner is 21 ¼ cents. Another 15 ½ cents was assigned to one Govindan as per assignment deed No.2114 of 1954. That portion is marked as 'plot B' in Ext.C2, the extent of which is found to be 17 cents. (Defendant Nos.3 to 7 are the predecessors- in-interest of the said Govindan). The remaining property is the suit property over which plaintiff claimed title as per Ext.A1 consequent to the death of her father, Narayanan Nair. Plaintiff had earlier filed a suit for prohibitory injunction as O.S.No.464 of 1988 as if she were in possession of the suit property. That suit was dismissed holding that defendant No.1 is in possession of the property. Thereon, plaintiff sued for recovery of possession on the strength of title. Defendant No.1 while admitting that the entire property originally belonged to Narayanan Nair, father of the plaintiff and the assignments made by him as stated in the plaint, claimed that Narayanan Nair had agreed to assign the suit property (property remaining after the assignments referred to in the plaint) to his sister, Kalyani Amma and gave possession of the property to the said SA No.484/2000 3 Kalyani Amma. Defendant No.1 got possession of the property from the said Kalyani Amma. She claimed to have obtained purchase certificate in respect of the said property. She also claimed to have perfected title by adverse possession and law of limitation. Defendant No.2 is the son of defendant No.1. He did not file any separate written statement. Defendants 3 to 5 (legal representatives of Govindan) did not make any claim over the suit property. Learned Munsiff found that the title of the suit property vested with the plaintiff, it is not lost by adverse possession and limitation and allowed her to recover possession of the property with mesne profits. Defendant No.1 took up the matter in appeal. First appellate court concurred with the findings entered by the trial court and dismissed the appeal. Hence, this Second Appeal at the instance of defendant No.1. 3. It is admitted by the appellant/defendant No.1 and Ext.A1 proves that the suit property and adjoining properties belonged to the father of original plaintiff Narayanan Nair. Therefore, on his death title should devolve on the plaintiff. 4. The thrust of the argument is concerning the plea of adverse possession and the law of limitation. Ext.B1 is the purchase certificate obtained by the appellant/defendant No.1 on 14.10.1975 in respect of the 40 ½ cents in survey No.575/2. Ext.B3 is the copy of application for purchase certificate. SA No.484/2000 4 Ext.B2 series are the receipts for payment of revenue and Exts.B4 series and B5 are stated to be the receipts for payment of rent to the jenmi. Courts below found that it is not shown that Exts.B1 to B5 are in respect of the suit property. Ext.B1, purchase certificate does not give the boundaries of the property and instead only says about the 40 ½ cents in survey No.575/2. It is not the case of the appellant/defendant No.1 that she is in possession of so much extent of land which originally belonged to the father of the plaintiff. The first appellate court observed that copy of the order granting purchase certificate also is not produced by the appellant/defendant No.1. Hence the courts below were justified in observing that Exts.B1 to B5 are not proved to be in respect of the suit property. Moreover, it is not shown that the plaintiff or her father were given notice of the proceeding which culminated in Ext.B1. Hence Ext.B1 is not binding on the plaintiff nor is it conclusive against her. 5. Ext.B6 is the copy of the plaint in O.S.No.464 of 1988 filed by the plaintiff against defendant No.1 and others for prohibitory injunction in respect of the suit property claiming to be in her possession. Ext.B7 is the copy of the report submitted by the advocate commissioner in that case, marked through defendant No.1 as (DW1). Ext.B8 is the copy of the written statement filed by defendant No.1 in O.S.No.464 of 1988. Exts.B9 and B10 are the copy of judgment and decree in that case. Ext.B11 is the certified copy of the deposition of DW1 in O.S.No.464 of 1988. It is not clear how Ext.B11 was marked in SA No.484/2000 5 evidence being the deposition of the appellant/defendant No.1 in the former case. So also, without examining the advocate commissioner who prepared the original of Ext.B7, that document could not have been marked in evidence. At any rate, without examining the advocate commissioner the contents of that document cannot be accepted in evidence. First appellate court observed that without the sketch/plan prepared by the advocate commissioner, Ext.B7 by itself is of no use. Copy of judgment and decree in O.S.No.464 of 1988 are of no assistance to the appellant/defendant No.1 to prove that she was in possession of the property for more than 12 years preceding the institution of the suit for recovery of possession. Though appellant/defendant No.1 claimed that as per an agreement for sale the suit property was given into the possession of Kalyani Amma by the father of the plaintiff, that is not even attempted to be proved by examining the said Kalyani Amma. There is no evidence to show that Kalyani Amma was in possession of the property. Hence, that plea of the appellant/defendant was rightly found against by the courts below. 6. Even if it is assumed that appellant/defendant No.1 had been in possession of the property for more than 12 years, mere length of possession cannot by itself extinguish the title of the plaintiff. It is not shown that with the required hostile animus to the title holder and to her knowledge, appellant/defendant No.1 was holding the property. Courts below are therefore, justified in finding against the plea of adverse possession and limitation. SA No.484/2000 6 7. In the circumstances stated above, the purchase certificate and payment of revenue or rent attempted to be proved through Exts.B1 to B5 cannot confer title on appellant/defendant No.1 or even by adverse possession. The substantial questions of law formulated are answered against the appellant/defendant No.1. This Second Appeal fails. It is dismissed. No costs. C.M.P.No.1292 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SA No.484/2000 7 Thomas P.Joseph, J. S.A.No.484 of 2000 JUDGMENT 31st March, 2009.