IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 WP(C).No. 9483 of 2008(D) ------------------------- CMA.43/2007 of ADDL.DISTRICT COURT,KOTTAYAM .................... PETITIONERS: ------------ 1. ANNA, AGED 75 YEARS, W/O.LATE DEVASYA CHERUVAM KALAYIL HOUSE, MEMURY KARA MANJOOR VILLAGE, KALLARA, VAIKKOM TALUK KOTTAYAM DISTRICT 2. KRISHNADEV, AGED 48 YEARS D/O.LATE DEVASYA, CHERUVAM KALAYIL HOUSE MEMURY KARA, MANJOOR VILLAGE, KALLARA VAIKKOM TALUK, KOTTAYAM DISTRICT. 3. MANJUDEV, AGED 42 YEARS D/O.LATE DEVASYA, CHERUVAM KALAYIL HOUSE MEMURY KARA, MANJOOR VILLAGE, KALLARA VAIKKOM TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.A.K.HARIDAS SRI.R.ANILKUMAR RESPONDENTS: --------------------- 1. PAILY JOSEPH, AGED 65 YEARS, S/O.JOSEPH THOOMPIL HOUSE, KALLARA KARA, KALLARA VILLAGE VAIKKOM TALUK, KOTTAYAM DISTRICT 2. PAUL JOSEPH, AGED 60 YEARS, S/O.JOSEPH THOOMPIL HOUSE, KALLARA KARA, KALLARA VILLAGE VAIKKOM TALUK, KOTTAYAM DISTRICT THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ------------------------------------------- W.P.(C).No.9483 of 2008 ------------------------------------------- Dated this the 19th day of March, 2008 JUDGMENT This writ petition is preferred against the order of the Additional District Judge, Kottayam in C.M.A.No.43/07 whereby the learned District Judge confirmed the finding of the learned Subordinate Judge in I.A.No.977/07 in O.S.No.111/07. 2. The writ petitioners are the plaintiffs in a suit for declaration of a title over the plaint schedule property and they claim that right by adverse possession and limitation. The court below had considered the various points that had arisen for decision including the decree passed by the Munsiff Court, Vaikom in O.S.No.434/1998. It is seen from the discussion in the orders that the present plaintiffs till the institution of the suit had never raised a contention that they are in possession of 51 cents of property. At the first stage they claimed kudikidappu right over 10 cents of property. Later they said that the kudikidappu right extends to 18 cents. Everything was considered and decided in O.S.No.434/1998 and thereafter, now the suit filed for a declaration that they are entitled to the WPC 9483/08 2 property by adverse possession and limitation. In the light of previous proceedings and the conduct of the plaintiffs in the case, it may not be correct to prima facie find the case of adverse possession in their favour. It requires evidence and it also is a debatable question whether they can raise such a plea in the suit when things are covered by a previous decision. The appellate court also found that it is only a suit for declaration alone and the court was of the view that without a prayer for injunction the suit may not lie also. I do not want to elaborate those materials for the reason that it may adversely affect one of the parties. I do not find any mistake in disallowing the prayer and therefore, the writ petition lacks merits and dismissed. But, I make it very clear that when the trial court proceeds to dispose of the matter, it shall do so, untrammeled by the observations contained in its order and in the C.M.A. M.N.KRISHNAN, JUDGE csl