IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 RSA.No. 269 of 2009() --------------------- AS.90/2004 of ADDL.SUB COURT, IRINJALAKUDA OS.134/2002 of ADDL.M.C.,IRINJALAKUDA .................... APPELLANT /APPELLANT/DEFENDANT --------------------------------------- KUTTAN, S/O.PADUKKAPARAMBIL THEYYAN, AGED 66 YEARS, NEDUMBAL DESOM, THOTTIPAL VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.SHAJI P.CHALY SRI.R.SANJITH RESPONDENT/ RESPONDENT/ PLAINTIFF ------------------------ RAJAN, AGED 40 YEARS, S/O.THACHANADAN VASU, NEDUMBAL DESOM, THOTTIPAL VILLAGE, MUKUNDAPURAM TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A. NO 577 OF 2009 IN R.S.A. NO. 269 OF 2009 DISMISSED SD/- HARUN-UL-RASHID,JUDGE 12.6.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 269 of 2009 ---------------------------------------- Dated this the 12th day of June, 2009 JUDGMENT This Second Appeal is directed against the judgment and decree in A.S. 90/2004 on the file of the Additional Sub court Irinjalakuda which arises from the decree and judgment in O.S. No. 134/2002 on the file of the Additional Munsiff's Courrt, irinjalakuda. The suit was filed for recovery of possession on the strength of title. The trial court decreed the suit declaring the title of the plaintiff over the plaint schedule property and directing the defendant to surrender vacant possession of the plaint schedule property within a period of one month from the date of decree. The said decree and judgment was confirmed in appeal by the lower appellate court. Hence this Second Appeal. The defendant in the said suit is the appellant herein. The parties hereinafter referred to as plaintiff and defendant as arrayed in the suit. 2. Before the trial court PWs 1 and 2 were examined and Exts. A1 to A5 are marked on the side of the plaintiffs. DW1 was examined and B1 to B10 are marked on the side of the defendant. Ext.C1 Commissioner's report and Ext.C1(a) rough plan are also marked as court exhibits. Ext.X1 is the document produced by the Village Officer , Thottippal. 3. The correctness of the findings entered by the courts below R.S.A. No. 269 of 2009 -2- are under challenge in this Second Appeal The plaintiff purchased the plaint schedule property as per sale deed No. 75/1999 from one Sri.Vijayan who had obtained purchase certificate in respect of the plaint schedule property . According to the plaintiff the defendant is in possession of 44 cents of property which is situated on the southern side of the plaint schedule property. When the defendant tried to trespass into the plaint schedule property, the plaintiff has filed O.S. 48/1995 before the Sub court, irinjalakuda and that suit was dismissed stating that the defendant is in possession of the plaint schedule property. The title of the plaintiff was not considered in that suit. The mother of Vijayan (assignor) had instituted O.S. 471/1991 and that suit was also dismissed stating that the plaintiff has no possession over the plaint schedule property. It is the plaintiff's case the after the decree in O.S. 48/1995 the defendant had destroyed the residential house situated in the plaint schedule property. According to the plaintiff, being a trespasser the defendant's possession and enjoyment of the plaint schedule property is illegal. Therefore the plaintiff filed O.S 134/2002 for recovery of possession of the plaint schedule property on the strength of his title. 4. The defendant denied the title of the plaintiff and his predecessors. He further contended that Ext.A4 purchase certificate obtained by Sri.Vijayan is not a valid certificate and the same was not binding on the defendant that the defendant is in possession of the plaint R.S.A. No. 269 of 2009 -3- schedule property and that the plaintiff is not entitled to any relief. According to the defendant Kochakkan (Vijayan's father) did not purchase the kudikidappu right, that when Vijayan started residing in the property purchased by him, Kochakkan and his family members surrendered the possession of the plaint schedule property to the defendant. 5. After analysing all the oral and documentary evidence adduced by both sides the trial court concluded that Sri.Kochakkan (Vijayan's father) has assigned his right to Vijayan and the Vijayan as assignee had obtained purchase certificate from the Land Tribunal and thereby the said Vijayan has became the owner of the plaint schedule property. Being a purchaser of the plaint schedule property from the cultivating tenant, it is further held that the plaintiff acquired title over the plaint schedule property. 6. The contentions raised by the defendant was also considered in detail by the trial court. The trial court also noticed the fact that Vijayan let out the house situated in the plaint schedule property to the plaintiff as per Ext.A5 rent deed dated 1.4.1993. This was also taken as another important circumstance to prove that the Vijayan was in possession of the property. The defendant's contention is to the effect that the purchase certificate was obtained by the plaintiff by practicing fraud and foul play and is not binding on the plaint schedule property and that no notice was issued to the defendant who is in possession of the property. The fact remains is that till date the defendant failed to challenge the order of the R.S.A. No. 269 of 2009 -4- assignment and the consequent issuance of purchase certificate in any statutory forums available to him. It is not disputed that the defendant till date had not approached any court of law or statutory forums for setting aside the purchase certificate on the ground of fraud or foulplay. Therefore the trial court held that the contentions of the defendant challenging the title of the plaintiff over the plaint schedule property is not sustainable in law or in facts The defendant/appellant has put forward an alternate plea that since he is in possession of the plaint schedule property openly, continuously and without any interruption for the last so many years and therefore he had perfected title by adverse possession and limitation ,. 7. The Commissioner reported that the plaint schedule property and the defendant's property are lying contiguously and that there is no evidence to show that the plaint schedule property was demarcated by fence. Considering the contention of the defendant that he is holding the property as a legal heir of the deceased kuttan and therefore he is a lessee entitled to fixity of tenure etc., the courts below held that those contentions were not sufficient to prove that the defendant is in possession openly, continuously and without interruption . This Court also noticed that fact that the defendant is claiming rival title over the plaint schedule property which is in absolute possession and enjoyment of the plaintiff. The courts below are right in dismissing the claim of adverse possession of the plaint schedule property since there is no evidence in R.S.A. No. 269 of 2009 -5- order to arrive at the fact that the defendant was possessing the property hostile to the true owner. 8. The lower appellate court held that the contentions of the defendant are not sustainable. The lower appellate court also considered the evidence in detail and arrived at right conclusion, agreed with the trial court's view and directed the defendant to vacate the plaint schedule property within 6 months time from the date of judgment. 9. The learned counsel for the defendant/appellant contended that the suit is barred by principles of resjudicata in view of the findings of the judgment in O.S. 48/1995 that O.S. 134/2002 is not maintainable in view of the bar under Order II Rule 2 of C.P.C for the reason that the rights of the plaintiff are not reserved in O.S. 48/1995 . The learned counsel for the defendant also challenged the validity of Ext.A4 purchase certificate and contended that the same is not binding on the defendant since the same was obtained by fraud and collusion and that no notice was served as provided under Section 72 K of the Kerala Land Reforms Act . According to him the passing of the decree for recovery of possession by the trial court by relying on Ext.A4 purchase certificate is grossly irregular and unsustainable in law. The counsel also stated that the finding regarding adverse possession is bad in view of the evidence on record and that It is evident that the defendant is in continuous possession of the plaint schedule property in continuation of his predecessors in interest ,for more than the statutory period. The R.S.A. No. 269 of 2009 -6- contentions raised by the learned counsel for the appellant/defendant were heard in detail by this Court. I find that the contentions regarding the validity of Ext.A4 Purchase certificate was considered by the fact finding courts. I have also noticed the fact that the order of assignment and consequent issuance of purchase certificate was never challenged before any legal authority by the defendant. Secondly, this Court noticed that except a bald assertion in the written statement,the defendant has not approached a court of law or any legal authority for setting aside the order of assignment which according to him is obtained by the plaintiff by practicing fraud and foulplay. I do not find any reason to interfere with the finding regarding the validity of Ext.A4 purchase certificate . All the above contentions wereraised by the defendant/appellant before the courts below and the courts below discussed those contentions in detail on the basis of facts, evidence and circumstances. The factual findings cannot be a subject matter of an appeal under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal This appeal fails and accordingly dismissed. The learned counsel for the defendant/appellant submitted that the time limit granted by the lower appellate court has been expired in March 2009 and the execution proceedings are in progress .He also requested this Court to extend the time limit. I find that the request of the defendant is reasonable. Therefore the time limit is extended by a further period of six months from the date of expiry of the time limit fixed R.S.A. No. 269 of 2009 -7- by the lower appellate court on condition that the defendant/appellant shall file an undertaking in the form of an affidavit before the execution court agreeing to vacate the premises within the time limit granted by this Court. The affidavit shall be filed within a period of three weeks from today. This Second Appeal stands dismissed. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 269 of 2009 ---------------------------- JUDGMENT 10th June , 2009