IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 1ST FEBRUARY 2008 / 12TH MAGHA 1929 RSA.No. 1111 of 2007() ---------------------- AS.40/2006 of SUB COURT, HOSDRUG OS.208/1999 of MUNSIFF COURT, HOSDRUG .................... APPELLANTS/APPELLANT/DEFENDANTS: ------------------------------------------------- 1. V.V. KUNHAMBU, AGED 71 YEARS, S/O. LATE BATTIYAN, RESIDING AT VELUR VAYAL, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. 2. V.V. KORAN, AGED 55 YEARS, S/O. LATE BATTIYAN, RESIDING AT VELUR VAYAL, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.T.K.VIPINDAS RESPONDENTS: RESPONDENT/PLAINTIFF: ----------------------------------------------- PADMANABHAN, AGED 52 YEARS, S/O. LATE KRISHNAN, RESIDING AT VELUR VAYAL, AJANUR VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT. BY ADV. SRI.KODOTH SREEDHARAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 01/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.2310/2007 IN R.S.A.NO.1111/2007 1.2.2008 DISMISSED Sd/- M.Sasidharan Nambiar Judge /true copy/ P.S to Judge M.SASIDHARAN NAMBIAR,J. =========================== R.S.A NO. 1111 OF 2007 =========================== Dated this the 1st day of February, 2008 JUDGMENT Defendants in O.S.208/1999 on the file of Munsiff Court, Hosdurg are the appellants. Plaintiff is the respondent. Respondent instituted the suit for recovery of possession on the strength of title contending that plaint schedule property forms part of the property which was obtained on kuzhikanam lease by his father Kanishan Krishnan and 1 acre 05 cents in R.S.No.391/8 of Ajanoor Village was obtained by father and he purchased jenm right from the Land Tribunal as per order in O.A.2203/1973 and obtained Ext.A1 purchase certificate. Subsequent to the death of his father, properties were divided by legal heirs including respondent under Ext.A2 partition deed. 20 cents of that property was allotted to respondent. Plaint schedule property is part of that property and the property which lies to the R.S.A.1111/2007 2 south of the property obtained by Krishnan and allotted to the share of respondent is the property of appellants and they have no right or title to the plaint schedule property and they trespassed into the property and respondent is entitled to a decree for recovery possession of the same on the strength of his title. Appellants resisted the suit contending that the disputed plaint schedule property originally belonged to Madiyan Koolom Kshethrepala Devaswom and their father Battiyan obtained the property on kuzhikanam lease and later he purchased the jenm right as per Ext.B1 order in S.M.207/1975 and 37 cents in R.S.No.391/11 belonged to Battiyan devolved on his legal heirs which was divided under Ext.B2 partition deed in 1983 and the northern plot A and D having an extent of 12 and 8 cents respectively were allotted to appellants and northern most 1 cent was kept as a way and respondent has no right or title to any portion of the said property and the suit is to be dismissed. It was also contended that even if respondent has any title, it was lost by adverse possession and limition. Subsequent to R.S.A.1111/2007 3 the filing of Ext.C1 report and Ext.C2 plan by the Commissioner wherein the disputed plot is marked as plot A E G F having an extent as 3.095 cents, plaint schedule property was amended showing the said extent, in accordance with Ext.C2 plan. Appellants contended that identity of the plaint schedule property is not correct. 2. Learned Munsiff on the evidence of PW1 and DW1 and Exts.A1 toA3(d) and Exts.B1 and B2 and Exts.C1 to C4, found that the disputed plaint schedule property is part of R.S.No.391/8 of Ajanoor Village and its jenm right did not belong to Madiyan Koolam Devaswom and appellants are claiming right and title to the property which was obtained on lease hold right from Madiyan Koolom Devaswom and plaint schedule property cannot be part of the property obtained by the father of appellants from Madiyan Koolom Devaswom. Learned Munsiff also found that the property obtained under Ext.A1 and subsequently allotted to the share of respondent under Ext.A2, is inclusive of the plaint schedule property and so respondent has title to the plaint schedule property. Learned Munsiff R.S.A.1111/2007 4 also found that without admitting and recognizing the title of respondent, appellants cannot claim adverse possession and in the absence of evidence that the plaint schedule property was in his possession with the necessary animus to possess it as against respondent, the true owner, plea of adverse possession is not sustainable. A decree for recovery possession of plaint schedule property was granted. Appellants challenged the judgment before Sub Court, Hosdrug in A.S.40/2006. Learned Sub Judge on reappreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that courts below did not properly appreciate the evidence and omitted to take note of the fact that the eastern boundary of the property obtained by respondent under Ext.A2 is not shown as the road, which should be the case if the disputed plaint schedule property forms part of the said property and it should have been found that the disputed R.S.A.1111/2007 5 plaint schedule property does not form part of the property obtained on lease by father of respondent or obtained by respondent under Ext.A2 partition deed and respondent has no title to the property. Learned counsel also argued that under Ext.B2 partition deed, property obtianed by his father under Ext.B1 purchase certificate was divided and property allotted to the appellants is the one which lies to the south of the way and therefore plaint schedule property could only be the property is the share of appellants under Ext.B2, which lies to the south of the way marked by the Commissioner in yellow shade in Ext.C2 plan and therefore findings of courts below that respondent has title to the plaint schedule property is not sustainable. It was further argued that evidence establish that there is a mud wall on the north of the disputed plaint schedule property and the property which lies to the south of that mud wall has been in the possession of appellants and their predecessors for the last more than 40 years and therefore title of the respondent if any has been lost by adverse possession and therefore the R.S.A.1111/2007 6 decree grated is not sustainable. Learned counsel finally argued that as per the amended plaint and the decree granted, plaint schedule property is one which is lying to the south of the remaining property of respondent and also the way and therefore the strip of land which is marked in yellow shade in Ext.C2 plan cannot be part of the plaint schedule property, as plaint schedule property could only be the property which lies to the south of that way and the decree granted is not executable. It was also argued that from Ext.C1 report and C2 plan, extent of the disputed property cannot be fixed as 3.095 cents and the findings of the courts below that plaint schedule property is 3.095 cents is also not sustainable. 5. On hearing the learned counsel, I do not find that any substantial question of law is involved in the appeal. 6. The title of respondent to the property obtained under Ext.A1 by his father and thereafter that of the respondent obtained under Ext.A2 partition deed are not disputed. Appellants are not disputing the right and title of R.S.A.1111/2007 7 respondent to the property, which lies to the north of the disputed property. There is no case that it is not part of the property obtained by Kanishan Krishnan the father under Ext.A1 purchase certificate or not part of the property obtained by respondent, as his share, under Ext.A2 partition deed. The property obtained by the father of respondent under Ext.A1 and allotted to the share of respondent under Ext.A2, as part of the property is admittedly the property which lies to the north of the property of appellants. So also appellants are admitting that the northern boundary of the property obtained by their father, which later devolved on the legal heirs including the appellants is the property, which lies to the south of the property, which was originally obtained by respondent and subsequently is in the possession of respondent under Ext.A2 partition deed. Neither Ext.A1 nor Ext.A2 show that the southern boundary of that property is a way. The southern boundary of the northern property which lies to the north of the property of appellants as marked in Ext.C2 plan in the way. But Ext.A1 and A2 R.S.A.1111/2007 8 do not show southern boundary as a way. Hence non mention of the way or road in the eastern boundary of the property covered under Ext.A1 or A2 is not fatal to respondent. 7. The dispute is whether the disputed plaint schedule property forms part of the property obtained by the father of respondent under Ext.A1 or part of the property obtained by the father of appellants under Ext.B1. It is admitted case of the appellants that their father obtained lease hold right, and later jenm right was purchased under Ext.B1 order of the Land Tribunal, from the jenmi Madiyan Koolom Devaswom. So also the property obtained by father of respondent on lease was not from Madiyan Koolom Devaswom, but another landlord. The fact that Madiyan Koolom Devaswom has no right over any property in resurvey No.391/8 and has right only over property in R.S.No.391/11 was not disputed. Therefore father of appellants could not have obtained any portion of the property in resurvey No.391/8, on lease from Madiyan Koolom Devaswom. Even according to appellants, the property obtained by their father from Madiyan R.S.A.1111/2007 9 Koolom Devaswom is in survey No.391/11. Courts below on the evidence and Ext.C1 report and Ext.C2 plan found that the disputed plaint schedule property forms part of R.S.No.391/8. Therefore appellants cannot claim any right or title to that property, as appellants and their father are claiming right only under Madiyan Koolom Devaswom . The courts below rightly found that plaint schedule property forms part of the property covered under Ext.A1 purchase certificate obtained by the father of respondent. It is more so, because the boundary of the property obtained by the father of respondent is the property of the appellants. Ext.B1 the purchase certificate obtained by the father of appellants does not show the boundaries of the property. Ext.B2 partition deed was in 1983. Based on the boundaries in Ext.A2, appellants cannot claim title to the property . True, appellants can claim title only for the property originally belonged to Madiyan Koolom Devaswom. Therefore findings of the courts below that respondent has title to the plaint schedule property is in accordance with the evidence. R.S.A.1111/2007 10 7. As title of respondent is established, appellants can succeed only if they could establish that they could perfected title by adverse possession. As rightly found by the courts below, in order to claim title by adverse possession respondent has to plead and prove that he or his predecessors have been in possession of the disputed property with necessary animus to possess it against the true owner, the respondent or his father. Appellants at no point of time recognised the title of either respondent or his father. Therefore courts below rightly found that respondent who did not admit or recognise the title and did not possess the plaint schedule property with the necessary animus to possess it as against the true owner, cannot claim title by adverse possession. Courts below rightly grant a decree for recovery of possession. 8. The argument of learned counsel is that the extent of the plaint schedule property is 3.095 cents but there is no evidence to prove the extent. I find that such a contention was not taken before the first appellate court when the judgment of the R.S.A.1111/2007 11 trial court was challenged. Ext.C1 report along with Ext.C2 plan establish that the disputed property is plot A E G F and it is having an extent of 3.095 cents. The argument of the learned counsel is that the northern boundary of plaint schedule property, after the amendment of the plaint, is shown as the property of respondent and the way. The argument of the learned counsel is that as the plaint schedule property is the one which lies to the south of the way, the strip of land which is shown as part of plot A E G F in yellow shade cannot form part of the plaint schedule property and therefore on the strength of the decree respondent cannot take possession of that portion of the property. The argument of the learned counsel is that as per the decree, plaint schedule property is 3.095 cents and in execution of the decree respondent may usurp more extent of the property which lies further towards the south. On the evidence and the findings of the courts below, I do not find any basis for such apprehension. The judgment shows that plaint schedule property is plot A E G F. Courts below R.S.A.1111/2007 12 found that respondent has title to that plot and recovery of possession of that property was granted. Appellants have no right to any property which lies to the north of that property. The north of that property belongs to the respondent. The southern boundary of plaint schedule property is G F line, which is the resurvey boundary of 391/8 which separate R.S. 391/11. Property of appellants is in R.S.391/11. Therefore in execution of the decree, respondent can take only that portion of the property which lies to the north to G F line, namely the resurvey boundary which separates R.S.391/8 from 391/11. In such circumstance, the appeal is dismissed in limine. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006