IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 16TH JUNE 2010 / 26TH JYAISTHA 1932 SA.No. 525 of 1999(D) --------------------- AS.17/1991 of SUB COURT, CHERTHALA OS.721/1984 of PRL.MUNSIFF COURT, CHERTHALA .................... APPELLANT/APPELLANT/4TH DEFENDANT: -------------------------------------------- BABY, W/O.THOMAS VARGHESE, PUTHENPARAMBIL, SHERTHALA SOUTH, MURI SHERTHALA. BY ADV. MR.SAIGI JACOB PALATTY MR.JOHN JOSEPH VETTIKAD MR.SABU GEORGE RESPONDENT/RESPONDENT/PLAINTIFF: -------------------------------------------- CHERTHALA TOWN N.S.S.KARAYOGAM NO.2250 OF 120, REPRESENTED BY ITS SECRETARY, A.KRISHNANKUTTY NAIR, MURLI NIVAS, SHERTHALA, KIZHAKKUM MURI, KOKKOTHAMANGALAM, SHERTHALAI. ADV. MR.V.N.SWAMINATHAN MR.S.DILEEP FOR RESPONDENTS THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 16/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 525 of 1999(D) ORDER ON C.M.P.NO.1391/1999 IN S.A.NO.525/1999 DISMISSED. 16.6.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.525 Of 1999 ---------------------- Dated this the 16th day of June, 2010. J U D G M E N T The 4th defendant in O.S.No.721 of 1984 on the file of the Munsiff Court, Cherthala is the appellant. The suit was filed for declaration of title and recovery of possession. Suit was decreed by the trial court and confirmed in appeal. Parties are hereinafter referred to as the plaintiff and 4th defendant as arrayed in the suit. 2. Plaint schedule property is having an extent of 57 cents. The plaintiff's title and possession relates to the sale sannath granted in S.C.S.270/1097 of Munsiff Court, Cherthala and delivery effected in execution. Portions of the property was encroached by the defendants in the year 1979 and plaintiff sought recovery of possession of the property which is in the hands of the encroachers. At the instance of the plaintiff, a commissioner was deputed to identify the property. The commissioner filed Ext.C1 report and C1(a) plan. The commissioner has identified the plaint schedule property and the S.A.No.525 Of 1999 ::2:: plots belonging to the plaintiff, 4th defendant and the encroached portion are shown separately. 3. The appellant/4th defendant claims right, title and possession over the yellow shaded plot having 30½ cents which forms part of the plaint schedule property. Appellant claims title and possession in the said plot as per Ext.B1 document. As per Ext.B1 appellant is the title holder of 30.5 cents of property comprised in Survey No.309/3B. The commissioner reported that the boundaries of the property covered byExt.B1 cannot be ascertained. A portion of the plaint schedule property form part of the plot in the possession of the appellant. The trial court as well as the lower appellate court found that the survey boundaries in 309/2B and 309/1B by any stretch of imagination it cannot be stated that the 4th defendant was put in possession of the property covered by Survey No.309/3B as per Ext.B1 document. Thus, the fact finding courts found that no portion of plaint schedule property form part of the property covered by B1 document. In such circumstances, there is absolutely no reason to hold that the contention of the 4th defendant that she has got title over a portion of the plaint schedule property. S.A.No.525 Of 1999 ::3:: 4. The trial court as well as the appellate court examined the further question as to whether the appellant has perfected title by adverse possession and limitation. The plaintiff is having title over the plaint schedule property. Admittedly, 15 cents and 896 square links land comprised in 309/1B is in the possession of the 4th defendant. The commissioner has reported that coconut trees aged 35 years are standing in the 15 cents and 896 square links of land comprised in 309/1B. It is also brought to this Court's notice the plaint averments that at a time the encroached portion is lying as barren land. According to the learned counsel for the 4th defendant the commission report would show that the 4th defendant and his predecessors are in possession and enjoyment of the property for the last several years and thereby they have perfected title by adverse possession and limitation. I have examined the evidence recorded by the trial court in this regard. The 4th defendant has not chosen to examine her predecessor in support of the above said contention. Learned counsel for the plaintiff submitted that the 35 year old coconut tree is standing in the property covered by Ext.B1 document belonging to the 4th defendant and that the commissioner S.A.No.525 Of 1999 ::4:: reported that there are several coconut trees standing in the property. The commissioner reported that the age of the other coconut tree standing in the said property is 8-10 years age. It is pertinent to note that the appellant/4th defendant did not adduce any independent oral evidence. The court below also noted the fact that there is no specific pleading in the written statement that the predecessor-in-interest of the 4th defendant was also in possession of 15 cents and 896 square links of property. Absolutely no evidence is adduced by the 4th defendant that her predecessor-in-interest was in possession of the plaint schedule property. It is not disputed that 15 cents and 896 square links property is in the possession of the 4th defendant. The fact findings courts found that the 4th defendant has trespassed in a portion of the plaint schedule property. The evidence adduced clearly probabilise his version that the 4th defendant has trespassed into the property in the year 1979. The 4th defendant failed to establish that she and her predecessor-in-interest were in possession of the plaint schedule property with hostile animus against the true owner at least 12 years prior to the institution of the suit. Courts below on evidence held that the 4th defendant S.A.No.525 Of 1999 ::5:: failed to prove his contentions. The findings of the court below are based on facts, evidence and circumstances. I find that no valid grounds are made out by the appellant to interfere with the finding on facts recorded by the courts below. No question of law muchless any substantial question of law arises for consideration in this appeal. In the result, appeal fails and accordingly, dismissed. There will be no order as to costs. HARUN-UL-RASHID, Judge. bkn/-