IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 SA.No. 913 of 2000(A) --------------------- AS.32/1998 of III ADDL.SUB COURT, ERNAKULAM OS.1365/1990 of II ADDL.MUNSIFF COURT, ERNAKULAM .................... APPELLANT(S)/APPELLANT/DEFENDANT: -------------- P.M.PETER, NAVAL OFFICER, PALAKKATTU HOUSE, PERUMPILLY DESOM, ,MULAMTHURUTHY VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.M.C.SEN, SENIOR ADVOCATE SRI.M.P.SREEKRISHNAN SMT.SHAHNA KARTHIKEYAN SMT.PARVATHI.A.MENON SMT.SAVITHA GANAPATHIYATAN SRI.S.PRAKASH RESPONDENT(S)/RESPONDENT/PLAINTIFF: --------------- P.T.VARGHESE, PALAKKATTU HOUSE, PERUMPILLY DESOM, MULAMTHURUTHY VILLAGE. ADV. SRI.K.C.CHARLES, SRI BALAGOPALAN A., SRI RAJAGOPALAN & SRI PRAKASH P GEORGE. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.No.913 of 2000 -------------------------------------- Dated this the 25th day of February, 2009. JUDGMENT Notice was ordered to the respondent on this appeal on the following substantial questions of law:- (i) Whether the finding of the courts below that the respondent/plaintiff has title to the property on the east of the road ignoring the eastern boundary mentioned in the partition deed as “road” is not against law. (ii) Even if respondent/plaintiff has title to the property, whether the trial court's decision that appellant/defendant has not perfected his title by adverse possession was correct in view of the finding that appellant/defendant was in possession of the property from 1936 onwards asserting title on him. 2. Respondent sought recovery of possession of about ten (10) cents in survey No.689/2 as originally stated in the plaint schedule on the strength of Ext.A1, partition deed No.23 of 1954. Respondent claimed that the total extent of 93 cents acquired by him as item No.6A of Ext.A1 is situated on the either side of the road lying north-south, the property scheduled being the ten (10) cents situated on the eastern side of the said road. It is also the case of the respondent that during 1953-1985 he was working outside the State and he permitted the appellant to cultivate seasonal crops in the schedule property but SANo.913/2000 2 the appellant refused to vacate on the respondent demanding so. Hence, the suit. Appellant contended that the disputed property formed part of the land belonging to him as per Ext.A2, assignment deed No.819 of 1111 M.E. falling in survey No.689/2 and that since then he is in enjoyment and possession of the said property. He also claimed that the respondent had trespassed into about 14 cents belonging to him which on verification was found to be 11 cents. Appellant claimed that at any rate, the right, title and interest of the respondent if any is lost by adverse possession and the law of limitation. In the trial court the advocate commissioner inspected the property and submitted report and plan, Exts.C1 and C1(a). Advocate commissioner reported that the extent of the disputed property is four (4) cents and that the said property as well as the property admittedly belonging to the respondent situated on the west of the road fell in survey No.689/3. Both sides adduced oral evidence. Learned Munsiff found that the disputed property formed part of the 93 cents belonging to the respondent as per Ext.A1 but refused to accept the contention of the respondent that during 1980 he permitted the appellant to occupy the said property for cultivation of seasonal crops. However the plea of adverse possession and limitation raised by the appellant was found against and accordingly, recovery of four (4) cents was allowed. Aggrieved, appellant took up the matter in appeal but without any success. Hence this Second Appeal. SANo.913/2000 3 3. Learned counsel for the appellant contends that as observed by the first appellate court there is no proper identification of the disputed property and at any rate, the finding of the courts below regarding adverse possession and limitation cannot be sustained. 4. It is true that the appellate court in paragraph 10 of the judgment observed that no attempt was made by either side to identify and locate the schedule property on the basis of boundary description. But the appellate court proceeded to consider the claim of the respondent regarding title to the suit property based on Ext.A1, C1 and C1(a) and in paragraphs 11 and 12 of the judgment, that court found that the disputed property forms part of the property belonging to the respondent as per Ext.A1. Reliance was also placed on the boundary description in Ext.A2, the document of title of the appellant concerning the property situated on the east of the suit property. The trial court also found, based on Exts.A1, C1 and C1(a) that the disputed property forms part of the property belonging to the respondent as per Ext.A1. 5. It is true that in the plaint schedule the survey number stated is 689/2. But the advocate commissioner has reported in Ext.C1 that the disputed property and even the property admittedly belonging to the respondent and situated on the west of the road fell in survey No.689/3. At this juncture, learned counsel for appellant contended that against the survey subdivision the respondent had preferred an appeal but that was rejected by the survey SANo.913/2000 4 authorities. Assuming so, as per Exts.C1 and C1(a) the admitted property belonging to the respondent falls in survey No.689/3 and the property admittedly belonging to the appellant and situated on the east of the disputed property falls in survey Nos.689/4 and 695/1. The appellant has no claim over the property comprised in survey No.689/3 as found by the advocate commissioner. 6. It is contended by the learned counsel for appellant that even going by the descriptions in Ext.A1(item No.6A) respondent cannot have property on the east and west of the road. Learned counsel referred me to the relevant description in Ext.A1 quoted by the learned Munsiff in paragraph 6 of the judgment. From that description I am unable to accept the contention that the respondent has no property on the east or west of the road for, what could be understood from the said description is that the 93 cents referred to in item No.6A of Ext.A1 is excluding the portion of the property taken by the Government for construction of road towards south(of the total extent). It is not disputed that at the time when Ext.A1 was executed, the road shown by the advocate commissioner in Ext.C1(a) lying north-south was in existence. That is clear from the boundary description in Ext.A1 as well, where the eastern boundary is stated as 'road and parambu'. Learned counsel for respondent explained that the boundary of the entire property including the disputed property on the east of the road was covered by that description and the reference 'road and parambu' means the road on the east and the property admittedly belonging SANo.913/2000 5 to the appellant on the further east of the disputed property. That explanation is quite acceptable in the light of Exts.A1, C1 and C1(a). Courts below found that the disputed portion formed part of the property belonging to the respondent as per Ext.A1. That being a finding of fact entered on proper appreciation of the evidence, there is little reason to interfere with that finding in the Second Appeal. 7. The next question is whether the appellant has perfected title by adverse possession and law of limitation. True, the trial court found against the contention of the respondent that in the year 1980 he permitted the appellant to occupy the disputed plot of land for cultivation of seasonal crops. Trial court was of the view that the appellant possibly could have got possession of the disputed property even as on the date of Ext.A2. Assuming so, to perfect title by adverse possession and limitation appellant has also to show that he possessed the property with the necessary hostile animus to the knowledge of the respondent, the real owner. . The Supreme Court in Hemaji Waghaji jat v. Bhikhabhai Khengarbhai Harijan (2008 (4) KLT 357) held that: “.......... Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. ......... The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a SANo.913/2000 6 wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.” In this case, evidence let in by the appellant does not satisfy that requirement. There is no evidence to show that the appellant has been holding the property adverse to the title of the respondent and to his knowledge. Therefore any length of possession of the suit property cannot confer title on the appellant or, extinguish the title of the respondent, under Section 27 of the Limitation Act. Courts below were justified in finding against the plea of adverse possession and limitation as well. No other point is raised for consideration. Resultantly, this appeal fails. It is dismissed. No costs. C.M.P.No.2401 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks SANo.913/2000 7 Thomas P. Joseph, J. S.A.No.913 of 2000 JUDGMENT 25th February, 2009.