IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 CMA.No. 58 of 2003() & MEMORANDUM OF CROSS OBJECTIONS -------------------- {A.S.NO.93/1999 OF THE ADDL. DISTRICT COURT, N.PARUR IN O.S.NO.205/1984 OF THE MUNSIFF'S COURT, PARAVUR .................... APPELLANT(S)APPELLANT/PLAINTIFF: -------------------------------------------------------------- RAMACHANDRA PAI, VALIYA VEETTIL, CHIRAKKAKAM MURI, VARAPUZHA VILLAGE. BY ADV. SRI.N.NAGARESH RESPONDENT(S)RESPONDENTS/DEFENDANTS: --------------------------------------------------------------------------- 1. KRISHNA PAI NARAYANA PAI, NADAKKA PARAMBIL, CHIRAKKAKAM MURI, VARAPUZHA VILLAGE. 2. PREMANANDA PAI, DO. DO. 3. DASA PAI RAMACHANDRA PAI, DO. DO. (DIED) 4. MANOJ, S/O.MUKUNDA PAI, KALAPARAMBATTU, VARAPUZHA VILLAGE. ADV. SRI.S.V.BALAKRISHNA IYER THIS CIVIL MISC. APPEAL HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P.NO.1376/03 IN C.M.A.No.58/03 DISMISSED. Sd/- (V.GIRI) 08.01.2009. JUDGE sk/- //true copy// P.S. to Judge. V.GIRI, J. --------------------------------------------------------- C.M.A..No.58 of 2003 & Memorandum of Cross Objections -------------------------------------------------------- Dated this the 8th day of January, 2009. JUDGMENT The plaintiff, in O.S.No.205/84 on the file of the Munsiff's Court, Paravur, is the appellant herein. The suit was one for recovery of possession, on the strength of title. The suit was dismissed by the trial court finding that the plaintiff has not proved his title. At the same time, the trial court had entered a finding against the defendants on their plea of adverse possession and limitation. The plaintiff preferred an appeal A.S.No.93/99 before the Additional District Court, North Parur. The lower appellate court set aside the judgment of the trial court insofar as there was a finding against the plaintiff on title. At the same time, the lower appellate court disagreed with the trial court as regards the plea of adverse possession and limitation raised by the defendants. The matter was, therefore, remitted for the limited purpose of entering a fresh finding on the defendants' plea of adverse possession and limitation. This C.M.A..No.58 of 2003 :: 2 :: has been challenged by the plaintiff in this Civil Miscellaneous Appeal under Section 104 of the Code of Civil Procedure. 2. The defendants have filed a Memorandum of Cross Objections insofar as the lower appellate court has entered a finding upholding the plaintiff's title to the plaint schedule property. 3. I heard counsel on both sides. 4. The plaintiff's case is that the plaint schedule property, along with other items measuring a total extent of 54 cents, which originally belonged to the plaintiff's family, which was obtained by the plaintiff's father by the registered partition deed, was leased out by his father along with his brother to one United Industries Limited. The company went into liquidation and the leasehold right in relation to the same was purchased by one Narasimha Naik, who became the lessee over 52 cents of property. The derivation of title thereafter is not very clear, though the plaintiff contended that Narasimha Naik originally transferred the leasehold right to the appellant and 2 cents of original 54 cents stated C.M.A..No.58 of 2003 :: 3 :: to have been retained by the plaintiff's father is also stated to have been released to the father by way of an oral transaction. The plaintiff filed an application before the Land Tribunal and Ext.P6 purchase certificate came to be issued in 'J form'. 5. In the meanwhile, the plaintiff's father's brother and the defendants' predecessor in interest wanted to construct a building in 3 cents on the north eastern side of 54 cents. The defendants' father purchased one shop room in the 3 cents of property in the possession of strangers. It is contended that the defendants trespassed into the plaintiff's property and constructed an extension to his shop encroaching upon the 2 cents and this is sought to be recovered on the strength of title. 6. In the written statement filed by the defendants, they refuted the plaintiff's derivation of title from Narasimha Naik and transfer of leasehold right in his favour. They, therefore, denied the plaintiff's title. They also set up a case of adverse possession and limitation in relation to the plaint schedule property contending that C.M.A..No.58 of 2003 :: 4 :: defendants' predecessor in interest was in possession of the property for more than 30 years, prior to the possession exercised by the plaintiff in relation to the shop rooms purchased by him earlier. The defendants also claimed the benefit under Act 35/69. 7. The defendants' claim for fixity of tenure was found against by the Land Tribunal. This obviously was binding on the trial court. As stated above, the trial court found against the plaintiff's on the question of title and dismissed the suit. Issue No.9 as to whether the plaintiff's right was lost by adverse possession and limitation was answered against the defendants. The trial court had found against the defendants' plea of adverse possession and limitation on the ground that the defendants purchased the property only in the year 1975 as per Ext.A3, that the suit was instituted in the year 1984 and therefore, they had not asserted possession for the prescribed period. 8. As stated above, the lower appellate court had proceeded to consider the finding of the trial court that the plaintiff had not proved his title. The lower appellate court, I C.M.A..No.58 of 2003 :: 5 :: should say, did not specifically enter a finding that the plaintiff had proved his title to the property. The lower appellate court only disagreed with the finding of the trial court that the plaintiff has no title to the property. But, a perusal of the judgment of the lower appellate court does not reveal that the lower appellate court has specifically gone into the question whether the plaintiff has proved his title to the property and whether there can be a finding that the plaintiff has established his title. In the circumstances, the contention taken up by the defendants in the memorandum of cross objections that it will be appropriate that the trial court be directed to consider the question of title afresh deserves to be accepted. 9. Insofar as the finding of the lower appellate court disagreeing with the finding of the trial court against the defendants on the question of adverse possession and limitation is concerned, I am of the view that the same does not warrant interference in this second appeal. The trial court had rejected the plaintiff's claim in this regard essentially on the ground that they had purchased the C.M.A..No.58 of 2003 :: 6 :: property as per Ext.A3 in the year 1973 and obviously they are not entitled to plead adverse possession in the suit instituted in the year 1984. The defendants had raised a contention that their predecessors was in possession of the property for a period of upwards 30 years and that therefore, they are entitled to tack on the same. This is a matter that requires consideration. The lower appellate court has only directed the trial court to consider the issue. In the facts and circumstances, I do not find any error committed by the lower appellate court in remanding the matter to the trial court for a consideration of the said issue. 10. In the result, the judgment and decree of the lower appellate court is set aside insofar as it relates to the finding on the question of title of the appellant. The trial court is directed to dispose of the suit [O.S.No.205/85] afresh. The parties shall be permitted to amend their pleadings and adduce additional evidence, if they are so advised. Since the suit is of the year 1984, the trial court shall give priority for disposal of the suit and shall venture to pass a fresh decree as early as possible, at any rate, within C.M.A..No.58 of 2003 :: 7 :: six months from the date of receipt of the records. The parties shall appear before the trial court on 16.02.2009. The Civil Miscellaneous Appeal and the Memorandum of Cross Objections are disposed of as above. Sd/- (V.GIRI) JUDGE sk/ //true copy//