IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH THURSDAY, THE 23RD JULY 2009 / 1ST SRAVANA 1931 SA.No. 301 of 1996(C) ------------------------------------- (AS.129/1991 & CROSS APPEAL of SUB COURT, PAYYANNUR) (OS.35/1987 of MUNSIFF COURT, PAYYANNUR) .................... APPELLANT(S): APPELLANTS: DEFENDANTS: ---------------------------------------------------------------- 1. KOOTTUR VEETTIL SAROJINI, D/O.LATE KUNHAKKAM, PERALAM AMSOM DESOM, PAYYANNUR VIA. 2. KOTTUR VEETTIL RAGHAVAN, RESIDING DO. 3. KOTTUR VEETTIL PADMAVATHI, RESIDING DO. 4. KOTTUR VEETTIL THAMBAYI, RESIDING DO. BY ADV. SRI.T.A.RAMADASAN SRI.K.M.SATHYANATHA MENON RESPONDENT(S): RESPONDENT: PLAINTIFF: --------------------------------------------------------------- RAMAPURATH RAMAKRISHNA PODUVAL, S/O.KUNHAMBU NAMBIAR, PERALAM AMSOM. BY ADV. SRI.R.SHANKAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 23/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH, J. -------------------------------------- S.A. NO.301 OF 1996 -------------------------------------- Dated this the 23rd July, 2009 JUDGMENT Supplemental defendants 2 to 5 who are the legal representatives of the first defendant, are the appellants. The case of the respondent/plaintiff was, in brief, as follows: The plaint schedule property was originally in the possession of the father of the plaintiff on Kozhunadappu right. While in possession, he gave properties to the plaintiff and his brother as per Gift Deed No.1881/73. Even prior to the gift deed, there was a case of putting them in possession. Plaint A schedule property in the Gift Deed was given to the plaintiff and B schedule to the brother. Plaintiff purchased jenm right. Defendants are in possession of the property on the northern side. Plaintiff's father himself gave property having an extent of 40 cents. Items 1 and 2 of the Gift Deed are the plaint schedule property. He found that when the Commissioner measured the property, the total extent of the property is only 1 Acre and S.A.NO.301 OF 1996 C 2 30.600 cents. As per the document, he is in possession of 1 acre and 58 cents. The property shown in Plot E in the Plan, is in the possession of the defendants. The disputed properties are marked as B and C Schedules. There was attempted trespass into plaint B and C schedule properties. Plaintiff sought permanent prohibitory injunction and if it is found that the defendants are in possession of the property, a decree was sought for recovery of possession on the strength of title. The original defendant filed written statement, inter alia, pointing out as follows: The defendant's mother orally took 72 cents of property from Kunnaru Chennamangalath Illoth Thevara Madam and she has been in possession of the property on kuzhikanam right by effecting improvements. She constructed a house in the property. It is stated that a portion of the property was used as paddy field after the death of Chiruthayi. The property devolved upon the original defendant and her brother Ambu. Her brother orally made over his right to the defendant. Subsequently, she S.A.NO.301 OF 1996 C 3 purchased jenm right over the property and has been in exclusive possession and enjoyment of the property. The defendant is in possession of the paddy field also and it is not correct to say that the defendant is in possession of 40 cents of paramba alone. 2. The present appellants filed an additional written statement, inter alia, contending that plaint B and C schedules were in the possession of the deceased first defendant and the plaintiff has no right over the plaint B and C Schedule properties. The plaintiff has never obtained plaint B and C schedules as per the gift deed. Plaintiff is not entitled for recovery of possession of B and C schedules and those properties were in the possession of the deceased first defendant and subsequently the defendants are continuously and uninterruptedly in possession for the last more than fifty years. Thus, the right of the plaintiff, if any, is lost by adverse possession and limitation. 3. The learned Munsiff found that the extent of property S.A.NO.301 OF 1996 C 4 mentioned in paragraph 3 of the plaint in respect of the extent as stated in Ext.A1 gift deed is not correct. It was further found that the plaintiff has got title over 1 acre and 58 cents whereas he was in possession of only 1 acre and 23 cents on the date of the Suit. Thereafter, he proceeds to find that the plaintiff is entitled to recover possession of plaint B schedule property excluding 0.800 cents from the northern side of plot C in Ext.C1. In doing so, the trial court rejected the case set up by adverse possession of the plaintiff with respect to 5.800 cents in plot C in Ext.C1 plan. There was an Appeal filed by the appellants. There was also a Cross Appeal filed by the plaintiff. In the Cross Appeal, it was contended by the plaintiff that the entire plots B and C were in his possession and the court should have granted a decree of prohibitory injunction instead of a decree for recovery of possession of plot C. The first appellate court has dismissed the Appeal filed by the appellants and allowed the Cross Objection in part and the plaintiff is granted a decree for prohibitory injunction against the appellants from S.A.NO.301 OF 1996 C 5 trespassing into plot C in Ext.C1. 4. I heard the learned counsel for the appellants. He would contend that there is a Commission Report in this case. The Commissioner has divided the property into five plots. There is no dispute regarding plots A and B, admittedly in so far as the property belonging to the plaintiff. It consists of 1 acre and 23 cents. The controversy relates only to plots C and D. Regarding plot E, there is no dispute. The first appellate court did not accept the finding of the trial court that plot C is in the possession of the appellants. Three reasons which are given by the trial court for finding that plot C is in the possession of the appellants were discussed and found to be unacceptable. The appellate court found that if plot C was left uncultivated by the plaintiff for the reason that he was actually not in possession of the said plot, there was no necessity for him to leave plot B uncultivated. Plot B is admittedly in the possession of the plaintiff. Plots B and C are lying adjacent and on the same level. The first appellate court accepted the case of the plaintiff S.A.NO.301 OF 1996 C 6 as to why the drainage was taken through the northern side of plot B. Both C and B are of same nature and lying on the same position. It is found that merely because plots E and D would not together make 40 cents, the trial court was in error in finding that the appellants are entitled to a portion of plot C. Contrary to the case set up by the first defendant as to how she came by the property, the case as proved by Exts.A15, A16 and A19 is different. Under Ext.A15, the defendants' uncle obtained 40 cents from the father of the plaintiff. By Ext.A16, the uncle assigned his rights to the mother of the first defendant. Ext.A19 is a purchase certificate in respect of 40 cents. Case of the appellants regarding 72 cents is unbelievable. It appears that during the trial, the defendant set up a case that she was in possession of 50 cents. The first appellate court found that if the possession as shown in Ext.A19 Certificate, namely 40 cents is correct, the defendants could not have been in possession of the entire plot C. The first appellate court found that the extent of 40 cents shown in the document also is not correct. In some of S.A.NO.301 OF 1996 C 7 the receipts, the extent is shown as 50 cents. Even if plots B and C are all taken together, it will not come to 50 cents, notes the first appellate court. The fact that plots B and C are both uncultivated and are lying together also has been taken note of and it is on this basis that the first appellate court has come to the conclusion that having regard to the title of the plaintiff over the extent of 1 acre and 58 cents, the plaintiff must be found to be in possession of plot C also. The findings are essentially based on appreciation of evidence before the court. No doubt, the appellants have formulated the following substantial questions of law: “i) Whether in the facts and circumstances of the case, the courts below were correct in law in having found title in favour of the plaintiff on the basis of the gift deed and Exts.A3 to A11 alone ? ii) Whether in the facts and circumstances of the case, the courts below were correct in relying on tax receipts to establish title ? iii) Whether the courts below were correct in relying on the purchase certificate of the defendant (A 19) to find that defendants have title and S.A.NO.301 OF 1996 C 8 possession only over 40 cents overlooking evidence of possession, such as Exts.B1 to B8 which show that defendants were in possession of more area than 40 cents, for which the above purchase certificate has been obtained ? iv) Whether the lower Appellate Court was correct in revising the finding of the trial court that the plaintiff was in possession of only 1 acre 23 cents. v) Whether the courts below were correct in their findings that the plaintiff's claim was not lost by adverse possession and limitation overlooking B1 to B8 which establish possession by defendants of an extent of property claimed by the plaintiff on title ? vi) Whether the lower appellate court was correct in allowing the cross appeal ?” 5. I do not think that the title of the plaintiff over the property can be called in question. It is to be noted also that once title is found in the case of uncultivated area, in the absence of acceptable evidence, it may be safe to apply the principle possession follows title. Both B and C plots are S.A.NO.301 OF 1996 C 9 uncultivated lands. If that is so, the finding of the first appellate court that the plaintiff was in possession of plots B and C cannot be said to be a perverse finding. The appellants have failed to make out a case for interference. Accordingly, the Second Appeal fails and it is dismissed. Sd/= K. M. JOSEPH, JUDGE kbk. // True Copy // PS to Judge S.A.NO.301 OF 1996 C 10 K.M. JOSEPH, J. S.A.NO. 301 OF 1996 C JUDGMENT 23rd July, 2009