IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 F.A.O.No. 25 of 2003() -------------------- A.S.NO.119/2000 OF PRINCIPAL SUB COURT,ALAPPUZHA. O.S.NO.613/1994 OF PRINCIPAL MUNSIFF'S COURT,ALAPPUZHA. .................... APPELLANT/APPELLANT IN A.S/DEFENDANT IN O.S: ------------------------------------------- PHALGUNAN @ VAKKAN S/O. KAYI JANAKI, POZHICKAL, CHETHI, MARARIKULAM NORTH VILLAGE, ALAPPUZHA. BY ADV. SRI.R.LAKSHMI NARAYAN SMT.R.RANJANIE RESPONDENTS/RESPONDENTS IN A.S/PLAINTIFFS IN O.S: ------------------------------------------------ 1. YOHANNAN S/O. JOSEPH JOOSA, RESIDING AT KURISINKAL, THUMPOLI MURI, ARYAD SOUTH VILLAGE, ALAPPUZHA-8. 2. PONNAMMA W/O. LAZAR, ARACKAL HOUSE, PUNNAPRA, ALAPPUZHA-4. BY ADV. SRI.M.D.SASIKUMARAN - R1 & R2 SRI.K.S.HARIHARAPUTHRAN - R1 & R2 SRI.P.J.JOSEPH - R1 & R2 SRI.GEORGE MATHEW - R1 & R2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 09/07/2008 ALONG WITH R.S.A NO.768 OF 2003,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: F.A.O.No. 25 /2003 ORDER ON I.A. NO.331 OF 2003 IN F.A.O.NO.25 OF 2003 DISMISSED SD/- 9/07/2008 M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE M.N.KRISHNAN, J. -------------------------- F.A.O. No. 25 OF 2003 & R.S.A. No.768 OF 2003 --------------------- Dated this the 9th day of July, 2008 JUDGMENT Both these appeals had arisen out of the judgment rendered by the Principal Subordinate Judge, Alappuzha, in AS 119/00. The suit is one for a permanent injunction with respect to item 1 of the plaint scheduled property. Item 2 in the plaint is a property having an extend of 3 cents, which according to the defendant had been given as a kudikidappu to the plaintiff’s family. So far as it relates to 3 cents of property as item 2 in the plaint scheduled property there cannot be any dispute regarding the right tile and interest of the plaintiff. On appearance, the defendant also filed a counter claim incorporating two items of property. Item 1 measuring 30 cents and item 2 measuring 9.5 cents excluding the 3 cents covered by item 2 of the plaint scheduled property. The trial court had decreed the suit with respect to item 1. It dismissed the counter claim. It is against those findings the defendant preferred AS 119/00. In other words the question that has to be resolved by the court in this case is whether the plaintiffs are having possession of item 1 of the plaint scheduled property and whether the defendant is entitled to exclusive right title FAO 25/03 & RSA 768/03 2 over item 1 and 2 of the written statement and in case of any trespass, a recovery of possession is to be ordered or not. The Commissioner inspected the property so far as it relates to item 1 of the plaint scheduled property and finds that the total disputed area is only 7.33 cents. The defendant is claiming right over the property by virtue of documents namely Exts.B1, B4 and B10. Plaintiffs does not claim on the basis of a document so far as it relates to item 1 of the plaint scheduled property. In other words, so far as it relates to item 1 of the plaint scheduled property and item 1 written statement, the property in dispute in only having an extend of 7.33 cents and not 40 cents as claimed by the plaintiffs nor as 30 cents claimed by the defendant. Defendant on the Commissioner’s report had claimed that item 1 is having an extend of 7.33 cents. In the records maintained by the village authorities or the revenue department, as the case may be, this land is described as Sarkar Puthuval land and therefore in order to resolve the question whether the said property forms part and parcel of the property claimed by the defendant by virtue of their title or it is a land which belongs to the Government as Sarkar Puthuval land. So far as the plaintiffs are concerned, if their possession is confined being a suit for injunction they may be entitled FAO 25/03 & RSA 768/03 3 for a decree for injunction. So far as the defendant is concerned, if it is in his possession, the documents of title should cover that property. In case of dispossession, he may have to seek recovery of possession. So far as it relates to this item is concerned, the appellate court had framed an additional issue as to whether item 1 described in the schedule of the written statement is a Sarkar Puthuval or is a property forming part of the property described in the schedule of B1, B4 and B10. So a finding on the said issue is absolutely necessary for a proper disposal of the case. Therefore, I do not propose to interfere with that order of remand passed by the appellate court. 2. The next question is with respect to item 2 of the written statement schedule. As stated earlier, item 2 of the plaint scheduled property admittedly is a property given to the plaintiffs by the defendant’s predecessors as kudikidappu and only barring that 3 cents, 9.33 cents is claimed as item 2 of the written statement schedule. In the written statement filed on the counter claim a reading of para 4 would reveal that they are claiming right over item 2 of the plaint scheduled property from 1976 onwards after obtainment of the pattayam. It is also contended that they are in possession of FAO 25/03 & RSA 768/03 4 the property as of right for more than a statutory period and therefore the right of the defendant in the suit is lost by adverse possession and limitation. 3. Unfortunately, I do not find any issue regarding adverse possession and limitation. After the amendment of the limitation act, if the defendant in the suit is able to establish his title, then the burden will shift to the plaintiffs to establish the right lost by adverse possession and limitation. It has also to be considered that whether a person can set up a title in himself by claiming that it belongs to him and also set up another pleading regarding adverse possession. It is true that inconsistent pleadings can be taken, it must be confined to one atleast at the stage of trial. In order to have adverse possession there must be hostile animus and it must be for the prescribed statutory period. Even without raising an issue and having evidence before the court, the appellate court jumps to the conclusion that the right of the defendants over item 2 of the written statement schedule is lost by adverse and limitation. This finding also requires interference for the reason that unless a specific issue is raised and parties are permitted to adduce evidence on that point, there cannot be a proper finding. FAO 25/03 & RSA 768/03 5 4. So the finding of the appellate court with respect to the question of adverse possession and limitation is set aside. In the counter claim the defendant is seeking recovery of possession on the strength of title. If the defendant is able to establish their title and if the plaintiffs in the suit fails to prove their title or adverse possession over item 2 of the written statement schedule then, necessarily, the defendant in the suit is entitled to have a decree for recovery on the strength of title. So that point also requires reconsideration. For that purpose I set aside the finding of the appellate court regarding adverse possession and limitation. Therefore first and second appeals are disposed of as follows: (1) The finding of the appellate court that so far as it relates to item 1 of the written statement schedule is concerned, and identification of the property on the basis of the documents of title over the properties if any has to be done, a decision has to be taken on the basis of that identification. (2) So far as it relates to item 2 of the written statement schedule is concerned, the finding of the appellate court on adverse possession and limitation is set aside and the trial court is directed to consider that matter afresh after filing an appropriate issue on FAO 25/03 & RSA 768/03 6 adverse possession and limitation and permitting the parties to adduce evidence in support of their respective contentions. Thereafter the matter be disposed of in accordance with law. Parties are directed to appear before the Principal Subordinate Judge, Alappuzha, on 12.8.08. M.N.KRISHNAN, JUDGE vps FAO 25/03 & RSA 768/03 7