IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH NOVEMBER 2010 / 5TH AGRAHAYANA 1932 RSA.No. 1178 of 2010(F) ----------------------- AS.128/2008 of II ADDL. DISTRICT COURT, PALAKKAD OS.82/2006 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(APPELLANT/DEFENDANT): -------------------------------------------------- SHANMUGHA RAJ, S/O.LATE ARUMUGHA CHETTIAR, KALLACHIRA, PERUVEMBU AMSOM, PALAKKAD TALUK-678 531. BY ADV. SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA SMT.P.L.MARY TREASA RESPONDENT(S) (RESPONDENT/PLAINTIFF): ------------------------------------- SARASWATHY AMMAL, S/O.LATE ARUMUGHA CHETTIAR, CHUNGAM, PARUVEMBU AMSOM, PALAKKAD TALUK-673 531. ADV. SRI.A.R.GANGADAS, CAVEATOR FOR RESPONDENT THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- R.S.A.NO.1178 OF 2010 ----------------------------------- Dated this the 26th day of November, 2010 J U D G M E N T The defendant is the appellant. Suit was for recovery of possession, damages and for mesne profits. Subject matter in the suit is seven cents of land comprising a building. Admittedly, the defendant is in occupation of that building, and recovery of possession of the land and building from him was sought for in the suit by the respondent with damages and also mesne profits. 2. Appellant is the son of the first wife of Arumugha Chettiar. After the death of his first wife, the above said Arumugha Chettiar married her sister, the plaintiff in the suit. She claimed title over the property under a registered deed executed in the year 1973. Her case, in brief, was that the defendant was permitted to occupy the building in May 1999, and thereafter, request made for surrender and vacant possession of that building was not heeded to and he had also committed extensive damages to the building to the tune of R.S.A.NO.1178/2010 2 Rs.25,000/-. She sought for recovery of the property with damages of Rs.25,000/- and also mesne profits at the rate of Rs.750/- till surrender and vacant possession. The defendant resisted the suit contending that his occupation over the building was not on the basis of permission from the plaintiff, but, on his own independent right and he has been continuing so for last more than twenty years. By such continuous occupation, he has prescribed title by adverse possession was his further case to resist the recovery of possession from the plaintiff. Subsequently, he filed another written statement, in which, an additional plea was also raised that the sale consideration for the property was paid by his father Arumugham Chettiar and the plaintiff only a name lender under the deed, and did not obtain any title, interest or right over the property. 3. On the materials placed, which consisted of PWs.1 and Exts.A1 to A4 series for the plaintiff, DW1 for the defendant and the report prepared by the advocate commissioner exhibited as Ext.C1, the trial court found that the plaintiff has got title over R.S.A.NO.1178/2010 3 the property and she is entitled to get recovery of possession as canvassed for from the defendant. However, her claim of damages and also mesne profits, on the materials placed, was found not proved, and so much so, the reliefs raised thereunder were negatived. The defendant challenged the decree granted by the trial court, preferring an appeal. The lower appellate court, after re-appreciating the materials tendered, concurring with the finding entered by the trial court, confirmed that decree, dismissing the appeal. Concurrent decision so rendered by the two courts below is challenged in this second appeal. 4. I heard the learned counsel for the appellant and also the respondent, who had filed a caveat. Adverting to the judgments rendered by both the courts below, it is contended by the learned counsel for the appellant that the question of title over the property disputed in the case was not properly appreciated and a decree of recovery of possession in favour of the plaintiff was granted even when she failed to produce the title deed over the property. The materials tendered clearly R.S.A.NO.1178/2010 4 demonstrate that the appellant who continued in occupation over the building had possession and enjoyment over the suit property much earlier to the date from which he was alleged to be put in occupation on the basis of permission by the plaintiff. His plea of adverse possession with reference to his previous possession over the building which was shown to be not under the plaintiff was not properly examined by both the courts below and that has resulted in forming wrong conclusions causing prejudice to the defendant, according to the counsel. Perusing the judgments rendered by both the courts, I find that the challenges raised by the counsel to impeach the concurrent decision in favour of the plaintiff have no merit at all. True, there was default on the part of the plaintiff to produce the title deed over the property which was sought to be recovered from the possession of the defendant. The learned counsel for the respondent/plaintiff submitted that only a photocopy of the title deed was produced and it was refused to be accepted in evidence. At this stage, having regard to the proved facts and circumstances presented in the case, especially where the defendant had contended in the R.S.A.NO.1178/2010 5 additional written statement that the title deed stands in the name of the plaintiff with a plea that she was only a name lender, the absence of production of that title deed does not assume any significance. The plea that she was only a name lender when the registered sale deed was admittedly in her name, has been repelled by both the courts below, and that being the case, the non-production of the title deed in the case has got only an innocuous value. Then the other plea that was set up by the defendant to resist the recovery of possession canvassed by the plaintiff on the strength of her title, on the contentions raised in the written statement, is built upon adverse possession. Evidently, not even the necessary particulars to set up such a plea leave alone the question when his possession became adverse to the real owner, the plaintiff, was stated in his written statement. Both the courts below have repelled that plea canvassed by the defendant as unworthy of any merit. The decree of recovery of possession granted in favour of the plaintiff in the proved facts and circumstances of the case is found to be unassailable. R.S.A.NO.1178/2010 6 There is no question of law, leave alone, any substantial question of law involved in the appeal, and it is dismissed. S.S.SATHEESACHANDRAN JUDGE prp R.S.A.NO.1178/2010 7