IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 6TH JULY 2009 / 15TH ASHADHA 1931 RSA.No. 560 of 2009() --------------------- AS.27/2007 of PRINCIPAL SUB COURT,KOCHI OS.417/2005 of PRL.M.C., KOCHI .................... APPELLANT/APPELLANT/PLAINTIFF: ------------------------------------- JOY, AGED 43, S/O. MATHEW, MANGALASSERY HOUSE, NARAKKAL VILLAGE, KOCHI TALUK, ERNAKULAM. BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SMT.K.M.RAMYA RESPONDENTS/RESPONDENT/DEFENDANT: ----------------------------------------------- 1. LONAPPAN @ JOHN, AGED 72, S/O. JOSEPH, RESIDING AT PULLAN HOUSE, NARAKKAL VILLAGE, KOCHI TALUK, ERNAKULAM. 2. ADDL. D2.ITTIACHAN, S/O. PAULOSE, MANAVALAN HOUSE, ATHIPURAM KARA, PUTHENVELIKKARA VILLAGE, PARUR TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ------------------------------------ R.S.A.No.560 of 2009 ------------------------------------- Dated this the 6th day of July, 2009 JUDGMENT The plaintiff in O.S.No.417 of 2005 on the file of the Principal Munsiff Court, Kochi is the appellant. The second appeal is directed against the judgment and decree in A.S.No.27 of 2007 on the file of the Sub Court, Kochi. The suit was filed for declaration of title over plaint 'B' schedule property by adverse possession and for consequential injunction restraining the defendant from demolishing the structures in the plaint 'B' schedule property and from dispossessing the plaintiff forcibly from plaint 'B' schedule property. The trial court dismissed the suit and confirmed in appeal. Hence the second appeal. 2. Plaint A schedule is the kudikidappu portion of the property and B schedule is the extent of property lying adjacent to kudikidappu property. Southern side of plaint A and B schedule property belongs to the defendant who is the landlord of the plaintiff. 3. By the order in O.A.No.467/79 of Land Tribunal, Vypin, purchase certificate was issued in the name of plaintiff's mother. The R.S.A.No.560 of 2009 2 adjoining property is scheduled as plaint B schedule having an extent of 10.5 cents. The plaintiff's case is that from 17/10/80 onwards the plaintiff and his family members are in adverse possession of plaint 'B' schedule property. In 1980 they constructed a toilet and a shed in plaint 'B' schedule property and further claimed that from 17/10/80 onwards the plaint B schedule property has been in actual, open uninterrupted, notorious, continuous and exclusive possession of plaintiff and his family members. 4. Before the trial court the parties led evidence. PWs.1 and 2, Exts.A1 to A3, DW.1, Ext.B1, B2, Exts.C1 and C1(a) are marked. In Ext.C1 report the Commissioner reported that all along the boundary of plaint B schedule property there are pathals. The trial court observed that there for the simple reason that there is no boundary demarcating plaint A and B schedule properties, it cannot be held that the plaintiff is in adverse possession of plaint B schedule property. It is true that the commissioner reported that both the shed and toilet are old. The age of shed and toilet is not stated by the R.S.A.No.560 of 2009 3 commissioner. No datas are available to assess the age of these structures. In addition to this there is another structure in plaint B schedule property. It is admitted by the plaintiff that the same was constructed in the year 1990 and that the construction cannot be completed due to obstruction of first defendant. The trial court held that since there is obstruction to the possession it cannot be held that the plaintiff is in adverse possession of plaint B schedule property. Further the trial court held that the existence of a cow shed, toilet and incomplete structure would not lead to the conclusion that the plaintiff is in adverse possession of plaint B schedule property. The court accepted the contention of the defendant that a toilet and the cow shed are put up by the plaintiff with permission from the defendant and that the incomplete structure could not be completed due to the obstruction caused by defendant, that was also taken as a circumstance in support of the defendants' case that the plaintiff has failed to prove title by adverse possession and limitation and that he has got possession of the property. R.S.A.No.560 of 2009 4 5. The appellate court has agreed with the findings of the trial court. The findings are based on oral and documentary evidence. The view taken by the trial court was rightly upheld by the trial court. The appellate court finds that no grounds are made out to take a different view. I find that the grounds urged are sufficient enough for interference under Section 100 of C.P.C. No question of law much less any substantial questions of law arise for consideration in this second appeal. Hence this appeal fails and accordingly dismissed in limine. HARUN-UL-RASHID, JUDGE skj.