IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 25TH FEBRUARY 2011 / 6TH PHALGUNA 1932 SA.No. 704 of 1999(A) -------------------------------- AS.185/1996 OF SUB COURT, KASARAGOD OS.296/1990 OF ADDL. MUNSIFF COURT, KASARAGOD .................... APPELLANTS/APPELLANTS/PLAINTIFFS: ----------------------------------------------------------- 1. K.A. HAMEED, AGED ABOUT 29 YEARS. 2. K.P. MOHAMMAD KUNHI, AGED ABOUT 32 YEARS. (BOTH ARE MUSLIM LANDHOLDERS, RESIDING IN MOGRAL PUTHUR VILLAGE OF KASARAGOD TALUK, P.O. MOGRAL PUTHUR). BY ADV. SRI.M.RAMESH CHANDER, SRI.M. VIJAYAKUMAR. RESPONDENTS/RESPONDENTS/DEFENDANTS: ---------------------------------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR OF KASARAGOD, P.O. VIDYANAGAR, KASARAGOD TALUK & DISTRICT. 2. THE TAHASILDAR, KASARAGOD OFFICE AT TALUK OFFICE, KASARAGOD TALUK & DISTRICT. 3. SMT.LAXMI, MOGRAL PUTTUR PANCHAYATH, EXECUTIVE OFFICER, RESIDING IN MOGRAL PUTTUR VILLAGE AND POST, KASARAGOD TALUK, KASARAGOD DISTRICT. R1 & R2 BY GOVT. PLEADER MR.JAYAKRISHNAN P.R. R3 BY ADV. SRI.E.D.RACHAL. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 25/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs SA.No. 704 of 1999(A) ORDER ON C.M.P. NO.1909/1999 IN S.A. NO.704/1999 DISMISSED 25/02/2011. SD/- P.BHAVADASAN, JUDGE //TRUE COPY// P.A. TO JUDGE rs P.BHAVADASAN, J. ------------------------------------- SA No.704 of 1999 ------------------------------------- Dated this the 25th day of February 2011 Judgment The plaintiffs, who were non-suited by both the courts below, is the appellant. 2. The suit is one for declaration of title and other ancillary reliefs. According to the plaintiff, the property comprised in RS No.246/1 originally belonged to one Subbanna Alva. As per Ext.A1 document dated 29.05.1990, the plaintiff purchased 18 cents from the legal heirs of the said person. The plaintiff would assert that Subbanna Alva was in possession and enjoyment of 65 cents of land comprised in RS No.246/2 along with the property covered by RS No.246/1. These two properties, according to the plaintiffs, were lying within a compound wall and was being enjoyed by the assignor of the plaintiff. According to the plaintiffs, subsequent to Ext.A1 sale deed, he was put in possession of the property and the SA No.704/99 2 defendants have no manner of right over the same or to evict him from the said property. They pointed out that Ext.A2 notice dated 15.06.1990 served on the defendants purportedly under Section 11(3) of the Kerala Land Conservancy Act directing to vacate the 65 cents of property comprised in RS No.246/2. It is alleged that the defendants have no right to evict the plaintiffs and therefore, the suit was laid. 3. The suit was resisted by the defendants. They contended that the claim made by the plaintiffs is false and imaginary. The plea put forward on 65 cents of property is totally false and without basis. The plaintiffs have claimed right as per Ext.A1 document which relates to 18 cents of property. The property comprised in RS No.246/2 is Government puramboke land and the plaintiffs have no manner of right over the property other than the one received by him under Ext.A1. On the basis of these contentions, the defendants prayed for a dismissal of the suit. SA No.704/99 3 4. On the above pleadings, necessary issues were raised by the trial court. The plaintiffs examined PW1 and had Exts.A1 to A5 marked. The defendants had Exts.B1 to B18 marked. Exts.C1 and C2 commissioner's report and plan were also marked. 5. The trial court, on an evaluation of the evidence, came to the conclusion that the plaintiffs cannot have any manner of right over the 65 cents of property covered by RS No.646/2/. There is no reason as to why the proceedings initiated by the defendants should be prevented. The plea of adverse possession and limitation put forward by the plaintiffs was found against, resulting in dismissal of the suit. 6. The plaintiff carried the matter in appeal as AS No.185/96 before the Sub Court, Kasaragod. The lower appellate court, on a consideration of the evidence in the case, came to the identical conclusion as that of the trial court and dismissed the appeal. Hence the second appeal. SA No.704/99 4 7. Notice is seen issued on the following questions of law raised in the second appeal : 1.When there is a dispute between th measurement and the boundary in Ext.A1 whether the courts below were right in holding that the measurement will prevail over the boundary ? 2.Whether the courts below were right in law to assume that Ext.B1 was a surrender of plaintiffs rights when it was not a registered surrender deed under Transfer of Property Act and whether it requires registration under the Registration Act ? 3.Whether the courts below have applied the correct principles on the question of adverse possession and limitations ? 8. The learned counsel for the appellants contended that the courts below have omitted to give due importance to the commissioner's report which shows that the property within the compound wall has been in the possession of either the plaintiff or his assignor for more SA No.704/99 5 than the statutory period. The learned counsel went on to point out that the courts below were not right in not accepting the commissioner's report. 9. Admittedly, the plaintiffs obtained only 18 cents as per Ext.A1 document. The claim of the plaintiffs was that their predecessors-in-interest had along with the property comprised in RS No.246/1 assigned the property situated in RS No.246/2 also and the suit properties were lying within a compound wall. It was that property that the plaintiff had purchased as per Ext.A1. The plea was essentially one of adverse possession and limitation. It is interesting to note that the plaintiffs purchased property as per Ext.A1 dated 29.05.1990. There is no evidence to show that the predecessor-in-interest was in possession of the property comprised in RS No.246/2. No independent evidence was adduced by the plaintiffs. The suit is instituted in the very same year. The courts below have considered the evidence in considerable detail and have come to the conclusion that the claim put forward by the SA No.704/99 6 plaintiffs cannot be sustained. It is not shown that the findings are perverse or unwarranted by the evidence on record. 10. There is yet another reason, why the suit should fail. The notice under the Kerala Land Conservancy Act has been issued as admitted by the plaintiffs, which is marked as Ext.A3. If that be so, Section 20A comes into play and the suit is clearly barred. The result is that this appeal is without any merits and it is liable to be dismissed. I do so. However, there will be no order as to costs. P.Bhavadasan, Judge sta SA No.704/99 7