IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 10TH SEPTEMBER 2009 / 19TH BHADRA 1931 SA.No. 123 of 1995(F) --------------------- AS.44/1989 OF DISTRICT COURT, KOZHIKODE, DATED 25.04.1994 OS.283/1981 OF SUB COURT, KOZHIKODE, DATED 01.02.1988 .................... APPELLANTS/APPELLANTS/DEFENDANTS 5 & 6: --------------------------------------------------------------------- 1. SRI. PADMANABHA RAO, S/O. RAMAPPA, AGED 58 YEARS, RESIDING AT NAGARAM DESOM & AMSOM, KOZHIKODE TALUK AND DISTRICT. 2. WIFE KAMALAMMA, AGED 52 YEARS, DO .. DO .. *ADDL. 3RD APPELLANT IS IMPLEADED: ADDL. A3. K.M. ASMABI, AGED 32 YEARS, D/O. V.M. MOOSAKOYA, RESIDING AT NAGARAM AMSOM DESOM OF KOZHIKODE TALUK. (ADDITIONAL 3RD APPELLANT IS IMPLEADED AS PER ORDER DATED 14.12.1998 IN C.M.P. NO.2250 OF 1998) BY ADV. SRI. P.P. RAJEEV LAXMAN ADDL. A3 BY ADVS. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 1 TO 4: --------------------------------------------------------------------------------------------- **1. SMT. C.P. MANHUMMABI, W/O. SRI. M.K.C. ABU HAJI, AGED 55 YEARS, RESIDING AT SUHARA MANZIL, CHEROOTTY ROAD, KOZHIKODE-1, P.O. KOZHIKODE, NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK (DIED) ***2. KOZHIKKODAN VEETTIL PATHA, D/O. KULLIAN, AGED 53 YEARS, RESIDING AT NAGARAM AMSOM AND DESOM, KOZHIKODE TALUK, H.NO. 9/485, P.O. KOZHIKODE, (DELETED) 3. KOZHIKKODAN VEETTIL MAMMAD KOYA, AGED 51 YEARS, .. DO .. DO .. (DELETED) 4. KOZHIKKODAN VEETTIL ASIA, AGED 49 YEARS, DO .. .. DO .. DO .. (DELETED) SA.No. 123 of 1995(F) 2 5. KOZHIKKODAN VEETTIL ABDULLA KOYA, AGED 48, .. DO .. DO .. (DELETED) *** (RESPONDENTS 2 TO 5 ARE DELETED AT THE RISK OF THE APPELLANT, VIDE ORDER DATED 31.07.2007 IN I.A. NO.1333 OF 2007) ** ADDITIONAL R6, 7, 8 & 9 ARE IMPLEADED: R6: M.K.C. ABU HAJI, S/O. LATE MANHUMMABI, AGED 82 YEARS, JETTY ROAD, PUTHIYANIRATHU, VENGALI, (P.O.) ELATHUR, CALICUT. R7: C.P. SUHARA, D/O. LATE MANHUMMABI, AGED 58 YEARS, REENAAS, THAVAKKARA ROAD, KANNUR. R8: C.P. KUNHIMUHAMMAD, S/O. LATE MANHUMMABI, AGED 56 YEARS, ROAD VILLA, CHETTIKKULAM, ELATHUR (P.O.); R9: C.P. SUBAIDA, D/O. LATE MANHUMMABI, JETTY ROAD, PUTHIYANIRATHU, VENGALI (P.O.), ELATHUR. ** (ADDL. R6 TO 9 ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED R1 VIDE SEPERATE TYPED ORDER DATED 04.08.2009 IN S.A. NO.123 OF 1995 AND S.A. NO.263 OF 1995). R1 BY SRI. N.N. SUGUNAPALAN, SENIOR ADVOCATE. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/09/2009, ALONG WITH S.A. NO.263 OF 1995, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Shg/ THOMAS P. JOSEPH, J - - - - - - - - - - - - - - - - - - - - - - - S.A. No.123 of 1995 & S.A.No. 263 of 1995 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of September, 2009 COMMON JUDGMENT These Second Appeals are brought from the judgment and decree of District Court, Kozhikode in A.S. No.44 of 1989 which arose from judgment and decree of the Sub Court, Kozhikode in O.S. No.283 of 1981. The parties, for convenience are referred as plaintiff and defendants as in the trial court. 2. Plaintiff sued defendants for recovery of possession of plaint 'C' schedule on the strength of her title. Learned Sub Judge decreed the suit and allowed recovery of possession of plots marked IV and V in Exhibit C2, plan after leaving a space having width of 2 feet around the house situated in plot No.1 and providing a way from that house to the road on the east, marked in Exhibit C2. Defendant Nos.5 and 6 took up the matter in appeal. Learned District Judge while confirming the judgment and decree of learned Sub Judge excluded from the decree for recovery of possession the portion occupied by the portico in plot No.IV of Exhibit C2. Both sides are aggrieved. Plaintiff has preferred S.A. No.263 of 1995. Defendants 5 and 6 preferred S.A. No.123 of 1995. While the Second Appeals were pending, defendant No.6 assigned the disputed portion of the property to S.A. No.123 of 1995 & S.A.No. 263 of 1995 2 Pathumma (supplemental 3rd appellant in S.A. No.123 of 1995). In these Second Appeals, the following substantial questions of law arise for a decision. (1) Whether in the facts and circumstances of the case plaintiff was entitled to get recovery of possession of the entire plaint 'C' schedule since her right is lost by adverse possession and limitation? (2) Whether finding of the First Appellate Court that title of plaintiff over portion occupied by the portico is lost by adverse possession and limitation is justified? 3. It is contended by learned counsel for the supplemental 3rd appellant in S.A. No.123 of 1995 that title of plaintiff over plaint 'C' schedule is lost by adverse possession and limitation. According to the learned counsel, First Appellate Court was not justified in limiting the finding regarding adverse possession and limitation to the portion of plot No.IV occupied by the portico. Learned counsel for the plaintiff would contend that there is no justification in the First Appellate Court holding that title of plaintiff over the portico portion is lost by adverse possession and limitation. 4. It is not disputed that plaint A, B and C schedules belonged to the plaintiff as per Exhibit A1, assignment deed of the year 1957. Plaint B schedule was acquired by one Pathumma as per Exhibits A2 S.A. No.123 of 1995 & S.A.No. 263 of 1995 3 and A3, document Nos.2701 of 1914 and 3382 of 1914. The said Pathumma assigned plaint B schedule to the predecessor of defendants 1 to 4 as per Exhibit B1, assignment deed No.295 of 1934. In Exhibit A1 it is stated that plaint B schedule was in the possession of karaima holders. The assignee under Exhibit A1 was given right to collect rent and evict the karaima holders. Defendants allegedly trespassed into the portion of the plaint A schedule and reduced a portion into their possession which necessitated the suit for recovery of possession of that portion described in the plaint as 'C' schedule. Defendants 1 to 4 on the other hand contended that the area allegedly trespassed upon formed part of their karaima holding, plaint 'B' schedule as per Exhibits A2, A3 and B1. They claimed that as per the said documents, they are entitled to be in possession and enjoyment of the area measuring 24 x 19 carpenter koles. Both sides adduced evidence in support of their respective contentions. Learned Sub Judge found that the entitlement of defendant Nos.1 to 4 as karaima holders is only in respect of an area measuring 12 x 19 carpenter koles and that reference in Exhibits B1 and B3 to B7 to the area of karaima holding as 24 x 19 carpenter koles is only an arithmetical mistake committed while drafting those deeds. Accordingly learned Sub Judge allowed recovery of possession of plot Nos.IV and V in Exhibit C2 plan, less a space having width of 2 feet on the north and east of plot Nos.I, S.A. No.123 of 1995 & S.A.No. 263 of 1995 4 II and III in Exhibit C2 treating it as land appurtenant to the house. Appellate court while upholding that finding held that in the light of Exhibit B2, plaint in O.S. No.32 of 1968 preferred by the plaintiff alleging that the contesting defendants trespassed into a portion of the property belonging to her and put up portico, it must be taken that from then onwards contesting defendants were in possession of the portico with the necessary animus to hold that portion of the property against title claimed by the plaintiff and hence, in respect of portion occupied by that portico, contesting defendants have preferred title by adverse possession and the law of limitation. These findings are challenged in these Second Appeals by way of substantial questions of law which I have earlier stated. 5. So far as the extent of karaima holding belonging to the contesting defendants and consequentially, the supplemental 3rd appellant in S.A. No.123 of 1995 is concerned, it is seen from Exhibit A2 and A3 that Exhibit A2 is in respect of the northern half of plaint 'B' schedule and Exhibit A3 is in respect of the remaining southern half. In Exhibit A2 and A3, the north-south measurement of the two portions is given as 9 ½ carpenter koles each which together came to 19 carpenter koles. The east-west measurement of the two portions is given in Exhibit A2 and A3 as 12 carpenter koles (property lies in rectangular shape, north-south). It is evident that it is by an S.A. No.123 of 1995 & S.A.No. 263 of 1995 5 arithmetical mistake that by multiplying the carpenter koles (12) for each of the two plots that in the subsequent documents (Exhibits B1 and B3 to B7), the east-west width of the plaint B schedule, the karaima holding was stated as 24 carpenter koles while actually the east-west measurement is, and can only be 12 carpenter koles (for both plots even if taken together). Therefore learned Sub Judge is justified in holding that entitlement of the contesting defendants as stated in Exhibits A2 and A3 is only for the area measuring 12 x 19 carpenter koles. 6. So far as plea of adverse possession is concerned, except the portion of portico shown in plot No.IV of Exhibit C2 over which learned District Judge found title by adverse possession in the light of Exhibit B2, there is no acceptable evidence to show that in respect of any other portion of the property shown in Exhibit C2, contesting defendants perfected title by adverse possession and limitation. So far as the contention of plaintiff in respect of the portico portion is concerned, Exhibit B2 and the oral evidence would show that right from 1966 onwards contesting defendants are in possession of that portion. A reading of Exhibit B2 would show that the said trespass was against the title claimed by the plaintiff. Therefore, I find no reason to interfere with the finding of learned District Judge that the contesting defendants have perfected title over the portion occupied by the S.A. No.123 of 1995 & S.A.No. 263 of 1995 6 portico as shown in Exhibit C2 by adverse possession and law of limitation. 7. I stated that learned Sub Judge has allowed for convenient user of the building in plot Nos. I and II, two feet wide space on the east of plot No.I and north of plot Nos.I and II. The said 2 feet wide space is alloted by learned Sub Judge on the east of the portion marked green and north of the portion marked blue (plot No.II) in Exhibit C2. While the First Appellate Court rejected the prayer for recovery possession of the portion on the east of green shaded portion (plot No.I), ie. the portico, it did not make it clear that on the east of portico portion also, the 2 feet wide space provided by the learned Sub Judge is available to the contesting defendants. Hence, I make it clear that the 2 feet wide space provided by the learned Sub Judge will be available to the defendants immediately beyond the portion occupied by the portico and the steps attached to it. 8. In the light of above discussion, plaintiff is entitled to recover possession of plot No. V of Exhibit C2 excluding the portion occupied by the portico and steps in plot No.IV and a space having width of 2 feet on the east of steps of the portico in plot No.IV and north of plot No.II apart from the way already provided by learned Sub Judge. 9. Learned Counsel for supplemental 3rd appellant in S.A. No.123 of 1995 & S.A.No. 263 of 1995 7 S.A. No.123 of 1995 has raised an argument that in view of the amendment of Section 23 A of the Kerala Land Reforms Act contesting defendants are entitled for beneficial enjoyment of 3.5 cents. The argument is that since the appeal from the order of Land Tribunal was pending consideration at the time the amendment came into force contesting defendants are entitled for the benefit of that amendment. But in view of the clarification I have made above it is not necessary to go into that question in these appeals since even as per the amendment referred to by learned counsel the karaima holder is only entitled for maximum beneficial enjoyment of 3.5 cents and that requirement is taken care by the clarification I have made. The substantial questions of law are answered as above stated and with the clarification made in paragraph 7 above, these Second Appeals are dismissed directing the parties to bear their costs through out. THOMAS P. JOSEPH JUDGE shg