IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 RSA.No. 450 of 2004() --------------------- AS.253/1999 of ADDL.DISTRICT COURT, THRISSUR OS.97/1995 of MUNSIFF COURT,CHAVAKKAD .................... APPELLANT/RESPONDENT/PLAINTIFF. --------------------------------------------------- ACHAMA, W/O.CHERUVATHOORU ITTIMANI, PAZHANJI VILLAGE AND DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SRI.JOJI VARGHESE SRI.M.HARI SHARMA SRI.T.P.ELDHOSE RESPONDENT(S): DEFENDANT. ------------------------- NARAYANAN, S/O.ARALIKKAL RAVUNNY, PAZHANJI VILLAGE, ARUVAI DESOM, TALAPPILLY TALUK, THRISSUR DISTRICT. ADV. SRI.P.V.SURENDRANATH FOR R1 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/08/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.450 of 2004 ............................................ DATED THIS THE 29th DAY OF AUGUST, 2011 JUDGMENT Plaintiff in O.S.97 of 1995 on the file of Munsiff Court, Chavakkad is the appellant. Defendant is the respondent. Suit was filed for fixation of boundary and permanent prohibitory injunction. Though four items of properties are shown as the plaint schedule properties, dispute is only with regard to portion of item No.3 of the plaint schedule properties. Item No.3 of the plaint schedule properties is the remaining portion of the property obtained by the appellant, excluding the property covered under Ext.B1 in favour of the respondent. Appellant is claiming title to item Nos.1 to 3 of the plaint schedule properties under Ext.A1 sale deed of 1957. Title is claimed under Ext.A2 over item No.4 of the plaint schedule properties. Appellant would contend that respondent has title and possession only to the property covered under Ext.B1 and therefore the southern and eastern boundaries of his property are to be fixed. Respondent resisted the suit contending that description of the property is not correct and RSA 450/2004 2 and out of item No.3 an extent of 8 3/5 cents was purchased by him from the appellant under Ext.B1 sale deed and the remaining extent is in the possession of the respondent adversely to the appellant for more than 20 years and therefore he has perfected his title to that property by adverse possession and appellant is not entitled to get the boundaries fixed including portion of his property with the property of the appellant. 2. Learned Munsiff on the evidence found that being a suit for fixation of boundary and injunction, question of adverse possession claimed by the respondent need not be considered, but based on Ext.C3 plan, fixed the southern and eastern boundary of Ext.B1 property, as the northern and western boundary of item No.3 of the plaint schedule property. A decree for injunction was granted restraining respondent from causing any obstruction to the peaceful enjoyment of the said property. Respondent challenged the decree before District Court, Thrissur in A.S.253 of 1999. The learned Additional District Judge, on re- appreciation of the evidence, found that respondent is in possession of plot-C marked in Ext.C3 plan. Upholding his claim RSA 450/2004 3 for title perfected by adverse possession it was held that appellant is not entitled to get the boundary fixed including plot-C as part of item No.3 of the plaint schedule property and instead, the appellant could claim only plot A1 marked in Ext.C3 plan and modified the decree in accordance with Ext.C3 plan limiting it to plot A1. Second appeal is filed challenging the said modified decree. 3. Second appeal was admitted formulating the following substantial questions of law. “1. Whether on the facts and circumstances of the case the finding of the lower appellate court that the respondents had perfected title by adverse possession and limitation merely because of the long and continuous possession is legal and proper ? 2. Whether the decision reported in Devaki Pillai V.Gouri Amma (2003(1) KLT 421) relies down the correct legal position regarding the claim of adverse possession and limitation is legal and RSA 450/2004 4 proper?”. 4. Learned counsel appearing for the appellant and respondent were heard. Learned counsel appearing for appellant pointed out that though respondent claimed adverse possession over an additional extent over and above the property covered under Ext.B1, trial court did not consider the question whether respondent has perfected title by adverse possession as in a suit for injunction that question need not be decided and appellate court should not have decided the claim for adverse possession and in case the finding in favour of the respondent is not sustainable. Learned counsel argued that even if appellant is not entitled to get fixation of the boundary including plot-C as part of item No.3 of the plaint schedule property, the suit should have been dismissed so as to enable the appellant to claim recovery of possession of plot-C and by upholding the plea of adverse possession, appellant was denied the right to seek recovery of possession on the strength of title and in such circumstances, the decree is not sustainable. Learned counsel argued that on the evidence, courts below should have found that appellant is in RSA 450/2004 5 possession of plot-C also and the decree is to be modified. 5. Learned counsel appearing for the respondent pointed out that though trial court did not consider the question of adverse possession, but the decree granted was fixation of boundary including plot-C which is in the possession of the respondent as part of item No.3, the first appellate court was justified in considering the question of adverse possession claimed by the respondent and in such circumstances, the decree granted is correct. 6. The suit is for fixation of boundary and for permanent prohibitory injunction. Though appellant sought decree for fixation of the boundary of the plaint schedule properties, in fact the dispute is only with regard to a portion of item No.3 of the plaint schedule properties. The prayer in fact is to fix the southern and eastern boundary of the property covered under Ext.B1 sale deed executed by the appellant to the respondent and not the boundaries of plaint schedule item Nos.1, 2 and 4. Appellant is admittedly having title to item No.3 of the plaint schedule property. It is under Ext.B1 sale deed 8.35 cents was RSA 450/2004 6 assigned by the appellant in favour of the respondent. There is no dispute with regard to the title of 8.35 cents and even in the plaint, appellant is admitting the right and title of the respondent to that extent of the property and sought fixation of the boundary excluding that property. The case of the respondent is that he is in possession of not only the property covered under Ext.B1, but an additional extent which lies further to the south of the property covered under Ext.B1. The claim is in respect of plot-C marked in Ext.C3 plan which lies to the east of Ext.B1 property. When no recovery of possession of plot- C was sought for and the decree sought for was for fixation of boundary and for permanent prohibitory injunction, on the contention that appellant is in possession of item No.3 of the plaint schedule property excluding the property covered under Ext.B1, if appellant is not in possession of a portion of the property over and above the property covered under Ext.B1, he is not entitled to get fixation of the boundary without a prayer for recovery of possession of that portion of the property. When there is no prayer for recovery of possession and claim is for permanent RSA 450/2004 7 prohibitory injunction, the question of adverse possession will not arise for consideration. As rightly found by the trial court, that question in the nature of the suit will not arise. If the respondent is in possession of any extent over and above the property covered under Ext.B1, even if he has not perfected the title by adverse possession, appellant cannot get a decree for fixation of boundary including that portion within the plaint schedule property. 7. Unfortunately, first appellate court omitted to take note of this cardinal principle and considered the question of adverse possession claimed by the appellant. No issue was framed by the trial court on adverse possession raised by the defendant. In such circumstances, first appellate court should not have decided the question whether respondent has perfected title by adverse possession claimed by the respondent as if it is found that plot-C is in the possession of respondent, the appeal could not have been allowed. The first appellate court found that appellant is not entitled to a decree for fixation of the southern boundary of Ext.B1 property as plot-C is in the possession of the respondent. RSA 450/2004 8 In such circumstances, finding on adverse possession by the first appellate court was uncalled for. It can only be set aside as it is unnecessary for the purpose of the suit. 8. The question is whether appellant is entitled to a decree for fixation of boundary, including plot C as part of item No.3 of the plaint schedule property. True, plot-C is outside the property covered under Ext.B1. Trial court, on the evidence considered the question of possession over plot-C marked in Ext.C3 plan and found that the claim for possession is based on the burial of the bodies of his parents and the aunt. On the evidence, it was found that no reliable evidence was adduced by the respondent to prove his possession, ignoring the fact that in a suit for injunction, burden is on the plaintiff to prove his possession and not for the defendant to prove his possession. First appellate court considered the evidence in detail and entered a factual finding that respondent established his possession of plot-C. On going through the finding of the first appellate court, that factual finding is perfectly correct and warrants no interference. As stated earlier, first appellate court RSA 450/2004 9 has found that respondent is in possession of plot-C. It was also found that respondent has perfected title by adverse possession. As stated earlier, that aspect should not have been decided by the first appellate court. The only question to be decided in the light of this finding on plot-C is whether appellant is entitled to a decree for fixation of the boundary including plot-C as part of item No.3 of the plaint schedule property. As stated earlier, when the plaintiff did not establish that he is in possession of a portion of plot-C a decree for fixation of the boundary of that plot cannot be granted without a claim for recovery of possession. When it is found that plot-C in Ext.C3 plan is in the possession of the respondent, trial court should not have fixed the southern boundary of the said property as the northern boundary of item No.3 of the plaint schedule property. First appellate court was justified in setting aside the decree for fixation of the boundary to that extent. First appellate court, on appreciation of evidence, entered a factual finding that plot A1 which lies to the east of the property covered under Ext.B1 is in the possession of the appellant. Respondent has not filed a cross RSA 450/2004 10 objection or an appeal against that finding. In such circumstances, finding of the first appellate court with regard to plot A1 is not to be disturbed. 9. Appeal is dismissed making it clear that finding of first appellate court that respondent has perfected his title by adverse possession over plot-C of Ext.C3 plan was uncalled for and the said finding will not be a bar for a suit based on title. Parties to suffer their respective costs. M.SASIDHARAN NAMBIAR, JUDGE lgk