IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 5TH APRIL 2010 / 15TH CHAITHRA 1932 RSA.No. 367 of 2010() --------------------- AS.53/2008 of ADDITIONAL DISTRICT & SESSIONS COURT, THRISSUR OS.1734/2006 of PRL.MUNSIFF COURT,THRISSUR .................... APPELLANTS/APPELLANTS/DEFENDANTS: -------------------- 1. ANTONY @ JOSE, AGED 53 YEARS, S/O.VAZHAPPILLY PAILOTH, RESIDING AT PAX STREET, NELLIKKUNNU, KURA DESOM OLLUKKARA VILLAGE, THRISSUR. 2. DAISY, AGED 51 YEARS, W/O.ANTONY @ JOSE, --DO--. 3. JEENA, AGED 23 YEARS, D/O.ANTONY @ JOSE, ---DO--. 4. TEENA, AGED 18 YEARS, D/O.ANTONY @ JOSE, ---DO--. BY ADV. SRI.C.HARIKUMAR SMT.MOLLY KOSHY RESPONDENT/RESPONDENT/PLAINTIFF: --------------- DEVASSY, AGED 67 YEARS, S/O.VAZHAPPILLY PAILOTH, RESIDING AT PAX STREET,NELLIKKUNNU, KURA DESOM, OLLUKKARA VILLAGE, THRISSUR. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 05/04/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- R.S.A.No.367 of 2010 --------------------------------------- Dated this 05th day of April, 2010 JUDGMENT The second appeal is preferred against concurrent verdicts of the courts below granting recovery of possession and prohibitory injunction, raising by way of substantial question of law whether appellants have perfected title over the suit property by adverse possession and limitation. Appellant No.1 and respondent are direct brothers. According to the respondents, suit property belonged to him as per document No.4480 of 1978 and he has been residing in the said property. There is another house in the same property bearing door No.15/844 (old No.2/231) which also belonged to the respondent and described as plaint B schedule where, appellant No.1 being his younger brother was permitted to stay along with the parents and after death of the parents, respondent demanded appellants to vacate. On refusal respondent instituted the suit for recovery of possession and prohibitory injunction. Appellants contended that respondent has only 14 cents out of the 34 cents including building bearing door No.2/226. The other house referred to in the plaint is situated in the remaining 20 cents which belonged to appellant No.1. Appellants are in R.S.A.No.367 of 2010 : 2 : possession of the said 20 cents and the building situated thereon from 1979 onwards. The family of appellant No.1 and respondent were staying at Paravatani in the family property which was sold and 40 cents was purchased utilising the sale proceeds. The western 20 cents was allotted to the respondent from which respondent sold 6 cents and what remained with respondent is only 14 cents. The eastern 20 cents and the building belonged to appellant No.1. He also raised plea of adverse possession and limitation. Courts below found against the plea of appellants and granted decree as prayed for which is under challenge. Learned counsel for appellants submit that finding of the courts below regarding adverse possession and limitation cannot be sustained, as there is evidence to show that asserting hostile animus against the respondent, appellants have been in possession of the suit property and the building in plaint B schedule from 1979 onwards. 2. Courts below found rejecting the contention of appellants that title of the suit property remained with the respondent. Though, appellants have a contention that the suit property was acquired by the respondent making use of funds raised by sale of family property at Paravatani, documentary evidence produced by the respondent show that the property at the Paravattani also belonged to him. It is based on the oral and R.S.A.No.367 of 2010 : 3 : documentary evidence that title of respondent over the suit property and plaint B schedule building was upheld. That involved no substantial question of law. 3. Then question is whether plea of adverse possession and limitation has been established by the appellants. It is not disputed that appellant No.2 and respondent are direct brothers. Their parents were staying in the plaint B schedule building until their death. According to the respondent it was on the strength of permission given to appellants that they stayed in plaint B schedule. The document produced by the appellants to prove their long possession are Exts.B3 to B7 which is for the period after 29- 01-1992. These documents are not sufficient to show that the appellants were asserting hostile title against the respondent. Courts below have considered the evidence and found against the claim of appellants. The finding is based on the evidence and involved no substantial question of law. Learned counsel requested that appellants may be granted six months' time to vacate the premises. He submitted that appellants have to find out alternative accommodation. Having regard to facts and circumstances stated, appellants are granted four (4) months' time from this day to vacate plaint B schedule. R.S.A.No.367 of 2010 : 4 : Resultantly the appeal fails and is dismissed in limine. Appellants are granted four (4) months' time from today to vacate plaint B schedule property on condition that they would file an affidavit in the trial court before 20-05-2010 undertaking to vacate plaint B schedule on the expiry of the said period of four months without putting forth any claim or objection. (THOMAS P JOSEPH, JUDGE) Sbna/-